Supreme Court Starts Term With Case on the Politics of Judging – The New York Times

WASHINGTON — The Supreme Court, awaiting the result of a partisan confirmation battle, opened its new term on Monday with a fitting argument on the impact of politics on judicial appointments.

Chief Justice John G. Roberts Jr. opened the session, which took place by telephone in light of the coronavirus pandemic, with a tribute to Justice Ruth Bader Ginsburg, who died last month. “We at the court will remember her as a dear friend and a treasured colleague,” he said.

In the argument that followed, the eight remaining justices considered whether states may take account of the political affiliations of judges to try to achieve something like ideological balance on their courts.

The case concerned Delaware, whose court system is both widely admired and idiosyncratic.

The state’s Constitution includes two unusual provisions. One says that judges affiliated with any one political party cannot make up more than a bare majority of the state’s five main courts. The other says that only judges affiliated with one of the two major parties may sit on the Delaware Supreme Court and two other courts.

James R. Adams, a registered independent, challenged the two provisions, saying they violated the First Amendment. The federal appeals court in Philadelphia ruled in his favor.

Michael W. McConnell, a lawyer for Delaware’s governor, John C. Carney, a Democrat, said the provisions were both constitutional and sensible. “The state is doing something that is actually quite commonsensical,” he said, “if you believe in a bipartisan judiciary.”

Justice Sonia Sotomayor questioned whether judges’ partisan affiliations predicted their voting.

Mr. McConnell asked her to consider “experience and reality.” Political scientists, he said, universally use political party affiliations as proxies for philosophy and ideology.

“In the last 20 or 30 years,” he said, “parties have been through what they call partisan sorting. Today, the most liberal Republican is at least similar to but probably more conservative than the most conservative Democrat.”

David L. Finger, a lawyer for Mr. Adams, said Delaware’s requirements “are based on the assumption that a judge’s political affiliations are determinative of how that judge will vote in a case.”

“This court can look to its own history as a refutation of that premise,” he said. “If this court accepts the premise, it’s the end of the idea of an independent judiciary.”

Several of the justices seemed troubled by the provision of the state’s Constitution that prevents members of minor parties or political independents from serving as judges.

“The Green Party need not apply,” Justice Stephen G. Breyer said. “It can’t.”

Mr. McConnell said the provision was a “necessary backstop” to the other one, which limits judges from any one political party to a bare majority on a court. “Without it,” he said of the exclusion, “it would be just too easy for the governor to name a political ally from an allied party.”

Indeed, Mr. McConnell said, Mr. Adams, a longtime Democrat who now calls himself a “Bernie Sanders independent,” was an example of that problem. “If there were already a Democratic majority on the court, and the governor were able to name Mr. Adams,” he said, “it would just fly in the face and frustrate the purpose of the political-balance provision.”

But Justice Neil M. Gorsuch questioned the lawfulness of the requirement that only Republicans and Democrats may apply.

“This is a novel thing, and it does prohibit a great percentage of the population from participating in the process,” he said.

Mr. McConnell acknowledged that “Delaware is the only state that does this.”

“But it is also the only state that has created a judiciary of a particular sort that is fair,” he said. “The Delaware judiciary is a jewel.”

Justice Brett M. Kavanaugh agreed that “the results in Delaware have been superb” and suggested that the Supreme Court might want to “leave well enough alone.”

He also asked whether a state could exclude Democrats and Republicans from judicial service, allowing only independents to be judges.

Mr. McConnell said it was conceivable that such a requirement would be constitutional.

Justice Elena Kagan asked whether it would be unlawful for a governor voluntarily to decide to appoint judges to achieve political balance. Mr. Finger responded that categorically excluding people unaffiliated with the major political parties would violate the Constitution.

Much of the argument in the case, Carney v. Adams, No. 19-309, concerned whether Mr. Adams had suffered the sort of injury that gave him standing to sue given that he failed to apply for judicial positions that would have been open to him. A ruling on that ground appeared possible, as did one that would strike down only the provision limiting appointments to candidates affiliated with the major parties.