Sen. Mitch McConnell and Chief Justice John Roberts in 2009 Credit: McConnell Center

If  Fate has a sense of humor, it amused itself Monday at the expense of Chief Justice John Roberts. The Chief and his seven associates began the 2020-21 Term (without Justice Ruth Bader Ginsburg). Their first case presented an argument about bipartisanship and political neutrality on the bench.

Technically, the question is whether Delaware can forbid partisan capture of its judicial branch.  But because it is 2020, that question echoed on the live feed like lines from a Harold Pinter play where even innocuous phrases carry a hidden meaning. No one talks about what is on everyone’s mind.

Roberts tries to maintain an image of the Court as a neutral body that simply calls “balls and strikes,” as he famously said in his 2005 confirmation hearings. Meanwhile, his party has proclaimed partisan domination of the courts as its number one objective—one so paramount that the Senate majority is planning confirmation hearings, with infected members present, that sounds like a remake of Edgar Allan Poe’s “Masque of the Red Death.” The Republican president explains without shame that he needs a 6-3 Republican majority on the Court to prevail in any election dispute.

At stake in Carney v. Adams are two provisions of the Delaware Constitution: one says that no political party can hold more than a “bare majority” of the judges on any of the top five state courts (the “bare majority” rule)—meaning, for example, that on the five-member state supreme court, no more than three judges can belong to the same party; the second requires every appointee to the top three courts—the state supreme court, the court of chancery, and the court of common pleas—to be either a Republican or a Democrat, but not an Independent or third-party member (the “major party” rule).

The “bare majority rule” was created when the state rewrote its constitution in 1897.  At that time, the Democratic Party had held the governorship for 30 years. (One Republican was elected during that stretch but died after a year and a half in office.) Delegates to the state convention charged that the bench had become a dumping ground for partisans and cronies. As the “bare majority” rule took effect over the next half-century, Delaware’s state courts become the most important corporate courts in America, and Delaware became our Cayman Islands, a banking hub. Part of the reason was the state’s business-friendly corporate statutes, but another part was their growing reputation for efficient, fair settlement of disputes. In 1951, the state legislature (which can amend the state constitution on its own) added to the “bare majority” rule a new dictum that each judge on the top courts must belong to one major party or the other. The reason, the current Governor John Carney, a Democrat, explained in his brief in Monday’s case, was to prevent an overreaching governor from dominating the courts by appointing “Independents” who had until recently been fellow partisans.

In 2017, a Delaware lawyer named James R. Adams challenged both requirements in federal court. Adams, a disillusioned Democrat, supported Bernie Sanders and then became an Independent. Thus, he was not eligible for any seat on the top courts. This, he argued, violated his First Amendment rights of speech and association. The Third Circuit Court of Appeals held both rules unconstitutional.

When the Supreme Court accepted the case in 2019, it attracted briefs from First Amendment heavyweights on both sides. Refreshingly, there’s no clear “liberal” or “conservative” position. Delaware was represented by Michael McConnell, a conservative Stanford professor appointed to the Tenth Circuit by George W. Bush and resigned in 2009. David Finger, a prominent Delaware lawyer, spoke for Adams.

“Delaware’s courts are widely regarded as the least partisan and most professional in the nation,” McConnell said on behalf of the state. “[T]he Delaware provisions serve a compelling interest in creating a uniquely balanced and nonpartisan judiciary.” The rank partisanship across the U.S. of the past two decades makes that “balance” particularly important, he added later. Delaware has become a solid-blue state (the last Republican statewide officeholder, state auditor Tom Wagner, left office in 2019). Without the “bare majority” rule, the Court would probably consist of five Democrats. That would have unbalanced the Court to the left, he implied.

In case the Justices hadn’t noticed, McConnell pointed out, “today the most liberal Republican is at least similar to but, you know, probably more conservative than the most conservative Democrat”—a particularly Pinteresque statement. As each of the Justices knows well, that polarization has been true of their Court at least since the retirement of Justice John Paul Stevens in 2010.

McConnell’s argument seemed to leave the justices two unappealing choices: either affirm that Delaware’s courts are fairer than they would be without political balance—a balance the federal courts conspicuously lack–or rule for Adams and insist that the Constitution requires Delaware’s judicial nominations to be the spoils of partisan warfare—the warfare that has consumed appointments to the federal courts. A few of the Justices seemed interested in a third option: flushing the case on technical grounds. Adams hadn’t actually applied for any of the “major party” judgeships, several justices pointed out—so why should he have “standing to sue” at being excluded from jobs he never sought? “For at least three of the five courts, he can’t even apply,” Finger responded to Roberts. “[O]r he can apply, but what’s the point?”

After the argument, the Justices seemed to be leaning toward one of two alternatives: either strike the entire case on “standing” grounds, which would leave the Delaware peculiar system as it is, or strike down the “major party” rule but leaving the “bare majority” rule in place.

McConnell concluded his argument by saying that the authors of the two rules “wanted the judiciary to remain stable, balanced, and nonpartisan, even when elections go all for one party for a period of time. Now their decision has survived the test of fire. For the last 27 years, one party has held both the governorship and the Senate in Delaware, but the courts have remained balanced and nonpartisan. That is a remarkable achievement.”

No one said, “I wonder if the federal courts can say the same.” But I am not the only person who wondered.

Whatever they decide about the “First State,” few observers today would call this Court “non-partisan.” On Monday night after argument, without comment, the Justices blocked part of a lower court order that would have made it easier to vote in South Carolina—an order that would have helped the campaign of Democratic challenger Jaime Harrison and hurt the re-election chances of Republican Senator Lindsey Graham. By my count, that marks seven emergency appeals on voting disputes the Court has intervened in; score to date, Republican 6, Democrats 1.

Meanwhile, across First St N.E. from the Court, Senate Republicans were working into the night to ensure that Amy Coney Barrett will be confirmed before the voters can say boo about it.

After all, those balls and strikes aren’t going to call themselves.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.