On Monday, October 5, 2020, the U.S. Supreme Court began its term with eight justices on the bench, after the passing of Justice Ruth Bader Ginsburg nearly three weeks ago. By teleconference, the Supreme Court heard oral arguments for Carney v. Adams, a timely case on whether Delaware's law to politically balance its own courts is constitutional.

At the center of the dispute are two Delaware laws known as the “bare majority” provision and the “major political party” provision. Under the former, state courts are allowed to have only a bare majority of judges from any one political party. Under the latter, the remaining seats on certain courts must be filled by judges from the other major political party. Currently, appointees affiliated with the Democratic Party hold a bar majority of the courts’ seats, with the balance being held by appointees affiliated with the Republican Party.  For two branches of the State’s courts system, only the bare majority requirement applies.

Michael McConnell, former Tenth Circuit Judge and now of Wilson Sonsini, argued on behalf of Governor Carney and the state that the major political party provision provides a "valuable backstop" to the bare majority provision. McConnell said that without that backstop, governors could simply nominate someone—whether an “independent” or a member of a political party—like the Green or Libertarian parties—whose views align with those of the governor and his party. That would frustrate Delaware’s goal of creating “stable, balanced, and nonpartisan” courts, which have attracted a majority of major companies to incorporate in the state.

Delawarean James R. Adams, a registered independent, had sued Delaware Governor John Carney (D) over the state’s political balance rule in 2017, saying his lack of party affiliation prevents him from becoming a high-level judge. The U.S. Court of Appeals for the Third Circuit agreed and found that Delaware’s law violated Adams’ First Amendment rights. Party affiliation can’t be considered in judicial appointments because judges aren’t policy makers, the court held. In December 2019, the U.S. Supreme Court granted certiorari for the case, agreeing to review the appeal. On January 21, 2020, the firm filed its opening brief on behalf Governor John Carney, and on March 13, 2020, the firm filed its reply.  Governor Carney’s position was supported by amicus briefs by numerous former Delaware governors and chief justices of the Delaware Supreme Court, the U.S. Chamber of Commerce, the Brennan Center for Justice, the Republican National Committee, various scholars, and the State and Local Government Associations, among many others.

The team from Wilson Sonsini representing Governor Carney in the matter includes Senior Of Counsels Michael McConnell and Supreme Court and appellae practice co-leader Steffen Johnson.

Please visit C-SPAN to hear the oral argument from October 5.