Brief of Amici Curiae Professors Brian D. Feinstein and Daniel J. Hemel in Support of Petitioner, Carney v. Adams

33 Pages Posted: 24 Feb 2020

See all articles by Brian D. Feinstein

Brian D. Feinstein

University of Pennsylvania, The Wharton School

Daniel Jacob Hemel

University of Chicago - Law School

Date Written: January 28, 2020

Abstract

Partisan balance requirements have been a feature of adjudicative and administrative bodies in the United States for most of the nation’s history. The most common of these are “bare majority” limitations, which mandate that no more than a bare majority of a body’s members may be registered in the same political party. Other partisan balance requirements stipulate that no more than fifty percent of a body’s members may be co-partisans. Some states layer—on top of a “bare majority” or “fifty percent” limitation—an additional “other major party” reservation, which sets aside remaining seats for members of the second leading party in the relevant jurisdiction.

Delaware’s Constitution combines all three types of partisan balance requirements in its Article IV, Section 3, which sets out rules and procedures for the appointment of judges. For the State Supreme Court, the Constitution establishes a bare-majority limitation: no more than three of five Justices may be members of the same party. For the Superior Court, the Court of Chancery, the Family Court, and the Court of Common Pleas, the Constitution imposes a bare-majority limitation when there is an odd number of members and a fifty-percent limitation when there is an even number of members. And for the Supreme Court, the Superior Court, and the Court of Chancery, the Constitution adds an other-major-party reservation on top of the bare-majority and fifty-percent limitations. The Court of Appeals below concluded that this last provision violated respondent’s freedom of association and that the bare-majority and fifty-percent limitations were inseverable from the other-major-party reservation.

Delaware’s Governor argues that the partisan balance requirements in Article IV, Section 3 ensure political and ideological diversity on the State’s courts and reduce partisanship and extremism in judicial decisionmaking. A growing literature in law and the social sciences sheds light on those claims. Three key lessons emerge from that literature:

— First, political and ideological diversity on courts can lead to less polarized judicial decisionmaking;

— Second, bare-majority and fifty-percent limitations—even without other-major-party reservations—can promote diversity on multimember bodies when political parties are ideologically coherent and checks on opportunistic appointment practices are in place;

— Third, when one political party dominates the appointment and confirmation process, bare-majority and fifty-percent limitations can be vulnerable to “gaming” by politicians who appoint nominal independents once their own party’s quota is filled.

All these conclusions were reached by scholars studying adjudicative and administrative bodies other than the Delaware courts, and none were developed with a view to the present case. These findings nonetheless have profound implications for the challenged provisions of Delaware’s Constitution:

— First, the documented depolarizing effects of viewpoint diversity in adjudication add force to Delaware’s claim that Article IV, Section 3 of the State Constitution serves interests of “vital importance”;

— Second, the conditional success of bare-majority and fifty-percent limitations in other contexts reveals that these provisions can produce their intended results—at least under certain circumstances—even without a mandate that members of the other major party occupy all of the remaining positions. This finding illustrates why the Court of Appeals below was wrong to conclude that caps on the number of judges from one political party could not be severed from the other-major-party reservations in the Delaware Constitution;

— Third, and notwithstanding the fact that bare-majority and fifty-percent limitations can produce political and ideological diversity under certain circumstances even without an other-major-party reservation, the other-major-party proviso in Article IV, Section 3 meaningfully enhances Delaware’s ability to achieve its diversity-promoting ends.

For all these reasons, amici urge the Court to reverse the decision below and hold that the partisan balance requirements in Article IV, Section 3—including the other-major-party reservation—are constitutional exercises of the State’s power to determine the structure of its own Judiciary. If the Court affirms the judgment below with respect to the other-major-party reservation, then the bare-majority and fifty-percent limitations should still stand as severable elements of a constitutional scheme; that scheme will be somewhat weaker without the other-major-party reservation, but far from powerless. And whatever result this Court reaches, it should do so with full knowledge of the benefits that partisan balance requirements potentially bring and the conditions under which they are most effective.

Keywords: partisan balance requirements, amicus brief, Supreme Court, Delaware, Carney v. Adams, state courts

JEL Classification: K0, K22, K30, H11, K23

Suggested Citation

Feinstein, Brian D. and Hemel, Daniel Jacob, Brief of Amici Curiae Professors Brian D. Feinstein and Daniel J. Hemel in Support of Petitioner, Carney v. Adams (January 28, 2020). Available at SSRN: https://ssrn.com/abstract=3526908 or http://dx.doi.org/10.2139/ssrn.3526908

Brian D. Feinstein

University of Pennsylvania, The Wharton School ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

Daniel Jacob Hemel (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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