A Possible End to Political Party Judicial Requirements

By: Caroline Christman

Freedom of Association

First Amendment theories suggest that political party affiliation should not be a deciding factor when considering judicial hopefuls. The First Amendment to the U.S. Constitution, which protects free speech, also implies the freedom of association to every U.S. citizen. A bedrock principle for the protection of free speech by the First Amendment is the free marketplace of ideas. However, the free marketplace is not free, and does not work efficiently, when people are compelled to join a group or to disclose membership in one. The Supreme Court recognized this freedom of association when it prohibited compelled disclosure of group affiliation in NAACP v. Alabama, noting that “[i]n the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” 

In NAACP v. Alabama, the Supreme Court had to decide whether the NAACP had to comply with an Alabama court’s production order. The production order required the NAACP to give the court a membership list. The Supreme Court held that requiring disclosure of the members of the NAACP could not be justified since it would have too much of a “deterrent effect on the free enjoyment of the right to associate.” In the same way, requiring judicial candidates to share their political party affiliation abridges their right to associate.

Carney v. Adams

In Carney v. Adams the Supreme Court will tackle the issue of whether political party affiliation within the judiciary is protected by the freedom of association. In this case, the Supreme Court must decide whether a provision in the Delaware Constitution that requires some appointed state judges to be either a Republican or a Democrat violates the First Amendment. This Political Balance Requirement, requiring vacant judicial seats to be filled by a judicial nominee of the same political party, prevents either political party from gaining more than a bare majority of seats in Delaware courts. 

A problem arose when James Adams wanted to apply for an open judicial seat. Only Republican candidates could apply, and Adams was a registered Independent. By requiring a judicial candidate to be Republican, Delaware barred otherwise eligible candidates from applying. Delaware’s rule is concerning because it excludes Independents and third-party candidates from being considered for judicial appointments. This could violate the First Amendment’s guarantee of freedom of association established in NAACP v. Alabama.

Adams brought a claim against the Governor of Delaware, John Carney, suing for a declaratory judgment that the Delaware Constitution violates the First Amendment. The District Court held that the Delaware Constitution did, in fact, violate the First Amendment. Delaware’s Constitution “exclud[es] Independents and third party voters from judicial employment” thereby restricting government employment solely on political affiliation. The Third Circuit partly affirmed that decision as to the “Supreme Court, Superior Court, and Chancery Court” for which Adams’ claim has standing.

On appeal, Governor Carney argued that judges fall into the policymaker exception to the First Amendment. The exception allows for some government candidates to be chosen based on political party affiliation without violating the First Amendment, since they make policy decisions for the state. However, the Third Circuit reasoned that since judges make decisions on a case-by-case basis and not on political party lines, they are not policymakers. The Third Circuit relied on a similar decision from the Seventh Circuit. There, the Seventh Circuit explained the unimportance of a judge’s role in politics. Judges are “not elected to represent a particular viewpoint,” instead, they are required to make fair and impartial decisions.

The Supreme Court heard oral arguments for Carney v. Adams on October 5, 2020. Adams argued that the provision in Delaware’s Constitution would fail under a heightened scrutiny standard because a less restrictive alternative could be used to balance the judiciary. Justice Kavanaugh questioned Delaware’s assertion that the Political Balance Requirement as it stands is necessary since Independents could help achieve the balanced judiciary Delaware desires.

Carney contended that Adams does not have standing to assert his claim because he is eligible to apply for some of the courts in Delaware and has not applied for those positions.  If the Supreme Court can get past the standing issue, it will decide the merits of the case. The probing questions asked at oral argument suggest that the Court is inclined to find that the provision in Delaware’s Constitution violates the First Amendment.

Potential Impact

The Supreme Court has previously decided that compelled disclosure of affiliation with groups violates the First Amendment’s freedom of association. The holding in NAACP v. Alabama means that that no one should be forced to associate or disclose affiliation with a political party. The same reasoning applies to judicial candidates. Therefore, allowing judicial candidates the freedom to disclose their political party affiliations or not is fundamental to the freedom of association and the First Amendment. Political party affiliations should not be the deciding factor in any judicial appointment or election since judges are required to be impartial and to make decisions unaffected by political beliefs.

However, Adams’ argument rooted in the freedom of association may not be sufficient to overcome such an historical practice in Delaware of only appointing judicial candidates who share the same political party as their predecessor. But, if the Supreme Court affirms the Third Circuit and decides for Adams, Independents and third-party candidates would at least be considered for judicial appointment in Delaware.

Adams’ case has implications reaching farther than the state courts in Delaware. If requiring certain political party affiliations for judicial candidates is unconstitutional, it could impact any requirements that elected judges run as either Democrat, Republican, or member of any party. Eventually, the practice of including judicial candidates’ political parties on ballots could come to an end. Judicial candidates should not be required to be affiliated with a political party and, while political party affiliation could be a relevant factor when choosing a judge, it should not be the deciding factor. This is especially true because judges are required to be neutral and detached arbiters of cases, which means that their decisions should not be influenced by their political beliefs.

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