Talk of Supreme Court reform is in fashion. With the increased trend toward overt politicization of judicial nominations and the dread of an enduring conservative majority on the Supreme Court, discussion of court packing now knocks at the door of mainstream politics. At least one presidential candidate has proposed how such packing might be accomplished, with Mayor Pete Buttigieg having suggested that the Court be expanded to fifteen members, with the two major political parties each allowed five appointments and the remaining five Justices appointed through bipartisan consensus. Such a scheme, first proposed by Professors Dan Epps and Ganesh Sitaraman, would thus go beyond just naked court packing and instead suggest an attempt to achieve sustainable political balance on the Court.
Recently, in Adams v. Governor of Delaware, the Third Circuit ruled that provisions of the Delaware Constitution designed to achieve political balancing on its state courts violated the First Amendment of the Federal Constitution. These provisions might be distinguished from current proposals for judicial reform insomuch as they originated in 1867 and relate to the appointment of state judges. However, the Third Circuit’s reasoning demonstrates the inherent tensions that will arise in any attempt at judicial reform through political balancing.
Article IV, Section 3 of the Delaware Constitution contains provisions that seek to achieve political balancing at various levels of the state court infrastructure. These provisions contain at least one of two components: a bare majority component and a major political party component. For example, the provision relating to the Delaware Supreme Court contained both: “[T]hree of the five Justices of the Supreme Court . . . shall be of one major political party, and two of said Justices shall be of the other major political party.” By including both a bare majority and major political party requirement, these provisions in effect reserved judicial positions exclusively to Democrats and Republicans.
These restrictions motivated James Adams, a Democrat turned Independent, to challenge the provisions under the First Amendment. Specifically, Adams argued that the political balancing requirements conditioned judicial appointments on a candidate’s political affiliation, and excluded independents from being considered for all judicial positions.
Judge Fuentes, writing for a unanimous panel including Judges McKee and Restrepo, first undertook a brief Article III standing analysis. The panel affirmed Adams’s standing to challenge the Delaware provisions that contained both a bare majority limitation and a major political party requirement, such that vacancies were in effect open only either to Democrats or Republican at any given point in time.
The panel then considered and dismissed the two arguments raised in defense of the Delaware constitutional scheme. First, the panel rejected the argument that state judges fell into a category of government employees whose “job responsibilities would make political party allegiance an appropriate condition of employment.” Looking to Elrod v. Burns and Branti v. Finkel, Supreme Court cases that established a “policymaking exception” to the First Amendment for government employment decisions, the panel reasoned that the justification of this exception was to allow elected officials to “put in place loyal employees who will not undercut or obstruct” an administration’s policy goals. To the panel, judges “simply do not fit this description,” and were instead expected to operate under ideals of impartiality and independence.
Next, the panel addressed the state’s argument that, even outside of the policymaking exception, Delaware’s constitutional scheme did not violate the First Amendment insofar as it furthered a vital government interest in ensuring “political balance” on the courts. Notably, the panel first suggested some concern with recognizing this stated interest, and specifically cast doubt on the implicit premise that judicial impartiality should be conflated with political balancing. However, the panel reasoned that it need not resolve those concerns. Even assuming the validity of the stated government interest, Delaware’s constitutional scheme failed to be narrowly tailored to that goal. Because the design of Delaware’s constitutional provisions effectively barred candidates who did not belong to either major political party from being considered for judicial positions, it could not pass constitutional muster as the least restrictive means of furthering the political balancing interest.
Judge McKee, joined by both colleagues on the panel, wrote a concurrence that identified the inherent irony in such political balancing requirements. By “elevating one’s political affiliation to a condition precedent to eligibility for appointment to the bench . . . Delaware has institutionalized the role of political affiliation rather than negated it.” Yet, a second layer of irony was not lost on Judge McKee. In particular, she recognized that Delaware has since been able to design a system that ensures a truly “exemplary,” or impartial, judiciary in significant part because of, and not despite, its candid recognition of the risks of political affiliation.
At various points of its reasoning, the Adams panel demonstrated how a court’s image of itself plays a determinative role in judicial scrutiny of political balancing requirements. For one, when deciding if judges ought to be seen as “policymakers” for the purposes of the Elrod and Branti analysis, a court must first decide the proper scope of the judicial role as it relates to policy and politics, in itself a fraught question. Then, when deciding whether or not the state has a vital or compelling interest in “political balance,” the court is again called to define the relationship between political affiliation and judicial impartiality.
On this second question, the Adams panel’s expressed unease with “conflating” political balance with judicial impartiality likely stems from a belief baked into our constitutional democracy: that of the judge as a neutral and nonpartisan arbiter of the law. Most recently, this ideal was reaffirmed by Chief Justice John Roberts in defense of the independence of the judiciary: “We do not have Obama judges or Trump judges . . . . What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Yet if anything, this country should have learned by now that repeating a constitutional promise often enough does not make it true. Take, for example, the lofty ideals of liberty and equal justice under the law. Fulfilling these promises has required us to possess the candor to confront hard truths, and then the courage to improve our imperfect political realities. To the extent that a real problem of judicial partisanship may exist, a court’s understandable unease with acknowledging its political biases ought not to prevent it from recognizing a vital and compelling interest in achieving political balance on the courts.
The Adams panel might have avoided addressing this fundamental tension given the overly restrictive nature of the specific Delaware provisions. However, this maneuver may not be available when courts are faced with different, and perhaps more refined, attempts at state and federal judicial reform. Judge McKee and her colleagues correctly identified the layers of irony involved in political balancing schemes. Yet, the final twist of irony’s knife might come in having the courts void any meaningful attempt at judicial reform because of a well-meaning but ultimately misplaced conception of their own impartiality, thereby removing the very chance for our court system to live up to this ideal.