Last year, in response to Donald Trump’s claim that an adverse judicial ruling was wrong because it was issued by an “Obama judge,” Chief Justice John Roberts replied that the federal judiciary does not consist of “Obama judges or Trump judges, Bush judges or Clinton judges.” Noting the importance of an independent judiciary, Roberts characterized all of his fellow federal jurists as “an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
That statement was entirely appropriate and—given the current President’s penchant for personal attacks on anyone who criticizes or disagrees with him—courageous. Trump seeks to delegitimize all institutions that challenge him, including Congress, the press, and the courts. He wants Americans to view the exposure of his use of a White House visit and desperately needed defense funds to extort a political favor from Ukraine as simply political opposition by Democrats; he seeks to dismiss factually accurate but unflattering reportage as “fake news”; and he hopes to discredit court rulings that hold him accountable to the law as the outputs of partisans. Accordingly, Roberts deserved high praise for standing up to Trump’s “Obama judge” line.
Does the Chief Justice’s view have broader implications? Article IV, Section 3 of the Delaware Constitution requires that that state’s judiciary be nearly equally balanced between Democrats and Republicans. Lawyer James Adams—a registered independent who wants to be a judge in Delaware—sued the governor on the ground that the selection process unconstitutionally conditions a government job on party affiliation. The U.S. Court of Appeals for the Third Circuit agreed with Adams and invalidated the selection procedure. Last week, the Supreme Court granted review of that ruling.
Much of the rhetoric of the Third Circuit opinion echoes Chief Justice Roberts’s rebuke of Trump. The court quotes the Delaware Code of Judicial Conduct, which requires state judges to be “unswayed by partisan interests.” It also quotes the Delaware Supreme Court, which has said that state judges “must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will.”
If Delaware state court judges are like their federal counterparts in standing outside of partisanship, then the U.S. Supreme Court should affirm the Third Circuit’s invalidation of Delaware’s partisan balance requirement, right? Not necessarily. As I explain below, unlike Trump’s efforts to delegitimize the judiciary, Delaware’s recognition of the role of partisan affiliation can and probably should be understood as a permissible means of limiting the role of politics in judicial appointments and judging.
The Technical Legal Questions
As it comes to the Supreme Court, Carney v. Adams poses a threshold question and a potential remedial question that I shall set aside here. The threshold question is whether Adams has legal standing to challenge part or all of the relevant Delaware constitutional provisions. Should Adams prevail on standing and the merits, his case will pose the further question of how much of the appointment process to invalidate, a question that the Third Circuit deemed one of severability.
On the merits, the case appears to fall within a line of Supreme Court cases that limit states’ ability to use the so-called “spoils system” under which plum government jobs are reserved for members of the party in power. In 1976 in Elrod v. Burns, the Supreme Court held that treating government jobs as patronage typically violates the First Amendment right of expressive association. The core logic of Elrod and the later cases is simple: Affiliating with a political party is a form of political speech; hence, reserving jobs for people who affiliate with a particular party is a viewpoint-based restriction on speech and therefore presumptively unconstitutional.
The Supreme Court’s patronage-limiting cases recognize an exception for so-called policymaking positions. Delaware Governor John Carney’s brief in support of Supreme Court review and the briefs of supporting amici argue that judges are policy makers, so the exception applies here.
The Third Circuit rejected that argument. That court said that while policy considerations can figure into judicial decisions, they do not play the right kind of role to count for the policymaking exception. The exception is justified by the fact that a governor (or President in the federal system) needs people in top positions—policymaking positions—who support the governor’s (or President’s) own policy priorities. Thus, it does not violate the First Amendment for a Republican governor (or President) to require that top lieutenants be Republicans. However, the Third Circuit went on to explain, judges do not carry out anyone else’s political or other agenda. On the contrary, once on the bench, they are supposed to be independent.
Governor Carney and his supporting amici counter that the policymaking exception to the Elrod line of cases has a broader rationale. A brief by law professors in support of the governor notes that in many areas of the law, judges have substantial room to give effect to their policy views, and that this is especially true in Delaware, where the courts make corporate law that typically has nationwide effect. Party affiliation, this brief and others say, is a fair proxy for policy views, which are surely relevant to considering who should be a judge.
The Supreme Court could reverse the Third Circuit’s ruling based on the notion that the policymaking exception extends beyond officials answerable to the head of the executive branch. It could also reverse the judgment based on a different rationale. Regulations of free speech can be upheld where they are narrowly tailored to serve a compelling interest. Governor Carney argues that Delaware’s partisan-balance rule serves the compelling interest in promoting the appearance and reality of an impartial judiciary. A similar rationale might be offered for partisan-balance rules applicable to various federal agencies, including the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Securities and Exchange Commission, the Federal Communications Commission, the Commission on Civil Rights, the Federal Energy Regulatory Commission, and the Federal Election Commission.
The Third Circuit opinion expressed skepticism about whether partisan balance is a compelling interest with respect to the state judiciary. However, that court assumed without deciding that it is and rejected the partisan balance rationale for a different reason. According to the Third Circuit, the Delaware selection provision is not narrowly tailored to advance the goal of impartiality because there is no need to exclude political independents.
Legal Realism and Popular Opinion
In sum, the Supreme Court could reverse the Third Circuit on any of three main grounds. First, it could find that Adams lacked standing. Even if Adams has standing, the Court could find, second, that the policymaking exception to the First Amendment’s bar on political patronage is broad enough to cover judges. Third, even if the Court rules against Governor Carney on both of those grounds, it could find that the interest in partisan balance is both compelling and necessarily excludes extreme views that do not fall within one of the two major parties in what is, after all, a two-party system.
I won’t hazard a prediction regarding any of the possible grounds for reversal. Instead, I’ll conclude by noting that Carney v. Adams implicates a profound question.
Any minimally sophisticated observer of the courts understands that party affiliation is a fair proxy for policy views, which play a substantial role in a judge’s decision in the sorts of contested cases that lead to appellate litigation. Accordingly, President Trump was not entirely wrong to refer to an “Obama judge.” After all, journalists frequently identify the President who appointed a judge involved in an important ruling as a signal to readers of the likely ideological lean of that judge.
At the same time, however, too-frequent or too-ready identification of judges with political parties is both inaccurate and destructive. It is inaccurate because nearly all judges try in good faith to follow the law, and often the law is sufficiently determinate to afford no room for resolving cases based on their ideological druthers. That is largely what Chief Justice Roberts meant when he criticized the President’s reference to an “Obama judge.”
The Chief Justice also sought to undercut a potentially dangerous implication of Trump’s statement: If the public comes to see the courts as no different from political actors like legislators and governors, that itself will undercut the rule of law. Indeed, one suspects that Trump refers to judges whose rulings he dislikes by political affiliation for the precise purpose of undercutting the courts as a check on his own power. Yet if Trump acts in bad faith, is there no way for good-faith lawmakers like those who wrote the Delaware constitutional provisions at issue in Carney v. Adams to take account of the political element of judging?
The Third Circuit thought not. Concurring, Judge McKee acknowledged that the challenged provisions “were enacted to ensure selection of a judiciary whose political balance would serve notice that judicial decisions were devoid of politics and political motivations” but nonetheless concluded that “by elevating one’s political affiliation to a condition precedent to eligibility for appointment to the bench by the Governor, Delaware has institutionalized the role of political affiliation rather than negated it.”
Maybe that’s right, but only if one assumes that the People cannot handle the truth. It should be possible for a state to act on the undeniable reality that judging is not completely separate from politics without leading the People to believe that, as Trump and other would-be dictators would have them believe, law is nothing other than politics.