James Adams v. Governor of Delaware

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 18-1045

_________________

JAMES R. ADAMS

v.

GOVERNOR OF DELAWARE,

Appellant.

_________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 17-cv-00181)

Honorable Mary Pat Thynge, U.S. Magistrate Judge

_________________

Argued September 25, 2018

Before: MCKEE, RESTREPO, and FUENTES, Circuit

Judges.

(Filed February 5, 2019 )

David C. McBride, Esq. [Argued]

Pilar G. Kraman, Esq.

Martin S. Lessner, Esq.

Young Conaway Stargatt & Taylor

1000 North King Street

Rodney Square

Wilmington, DE 19801

Counsel for Appellant

David L. Finger, Esq. [Argued]

Finger & Slanina

1201 Orange Street

One Commerce Center, Suite 725

Wilmington, DE 19801

Counsel for Appellee

_________________

OPINION OF THE COURT

_________________

FUENTES, Circuit Judge.

James R. Adams is a resident and member of the State

Bar of Delaware. For some time, he has expressed a desire to

be considered for a judicial position in that state. Following

the announcement of several judicial vacancies, Adams

considered applying but ultimately chose not to because the

announcement required that the candidate be a Republican.

2

Because Adams was neither a Republican nor a Democrat, he

concluded that any application he submitted would be futile.

Adams brings this suit against the Governor of the State

of Delaware to challenge the provision of the Delaware

Constitution that effectively limits service on state courts to

members of the Democratic and Republican parties. Adams

claims that under the Supreme Court’s precedent in Elrod v.

Burns1 and Branti v. Finkel,2 a provision that limits a judicial

candidate’s freedom to associate (or not to associate) with the

political party of his or her choice is unconstitutional. The

Governor argues that because judges are policymakers, there

are no constitutional restraints on his hiring decisions and he

should be free to choose candidates based on whether they

belong to one of the two major political parties in Delaware—

that is, whether they are Democrats or Republicans. We

disagree and conclude that judges are not policymakers

because whatever decisions judges make in any given case

relates to the case under review and not to partisan political

interests. We therefore conclude that the portions of

Delaware’s constitution that limit Adams’s ability to apply for

a judicial position while associating with the political party of

his choice violate his First Amendment rights, and we will

accordingly affirm in part and reverse in part the District

Court’s grant of summary judgment in favor of Adams.

1

427 U.S. 347 (1976).

2

445 U.S. 507 (1980).

3

Background

A. Article IV, Section 3 of the Delaware

Constitution

In 1897, Delaware was unique in its method of judicial

selection—it was the only state in the country in which the

governor appointed judges without legislative involvement.3

Judicial selection became an important and contentious topic

during Delaware’s constitutional convention that year.

Debating whether or not to move to a system of judicial

election, delegates to the convention expressed their deep

concern over the politicization of the judiciary. John Biggs,

Sr., the president of the convention, explained his position that

the appointment of judges would enable judges to remain free

from political cronyism and partisanship:

I think it would be very unwise that

our Judges should be mixed up, I

will say, in politics. We can obtain

good men in this way, by the

confirmation by the Senate,

without those men being under

political obligations, such as are

engendered at primaries and at

general elections.

And there are reasons, it occurs to

me, why the Judges should not be

elected that perhaps do not apply to

3

Randy J. Holland, The Delaware State Constitution: A

Reference Guide 128 (2002).

4

any other officers. For after all,

Judges are but human. Whoever

sits upon the Bench to pass upon

the rights of yours as to your

liberty and your property ought

certainly to be as free from all

influence and bias, political and

otherwise, as it is possible to throw

around that man.4

The delegates ultimately recommended amending the

Delaware Constitution to provide for gubernatorial nomination

of judges, with confirmation by the Senate. They did not stop

there, however, and debated a novel approach designed to

make the judiciary “non-partisan, or if it be a better word, bi-

partisan”—a limitation on the number of judges from one party

that could sit on the bench at any given time.5

Some delegates voiced their support for the provision,

stating that minority representation on the judicial bench would

“bring about a fuller and freer discussion of these matters that

come before them and that they may make fair and impartial

decisions on those questions.”6 Some, however, expressed

concern that the provision would bring about the opposite

result. As delegate Andrew Johnson explained:

It is well known that [judges

serving on Delaware’s] Judiciary

at the present time have been

4

J.A. 117–18.

5

J.A. 130.

6

J.A. 133.

5

appointed from one political party.

That probably is not the best

course to pursue, and I would be

very glad to see the Governor of

this State appoint well equipped

men from another party. I would

hail the day when it was done and

would be glad to have it; but to

vote to compel a Governor to

appoint a man on account of his

political affiliation, you are simply

saying, “You are put upon the

Bench to look out for our party

interests whenever they come up.”

There is no other construction that

you can put upon it. There can be

no other, in my own mind,

established, and that man is

expected, whenever a political

question arises, before that Court

to take care of his own party rights

or privileges.7

Ultimately, the provision prevailed, and Delaware’s

constitution has included some form of a political balance

requirement ever since. In 1951, as part of a wider series of

structural changes to the Delaware judiciary, the provision was

modified to exclude third party and unaffiliated voters from

applying to serve as judges on the Supreme Court, Superior

Court, and Chancery Court in Delaware. The system thus

created is binary, excluding all candidates from consideration

7

J.A. 134.

6

except those of the Republican or Democratic parties. The

provision has been reaffirmed during the amendment process

several times, including in 2005. Article IV, Section 3 of the

Delaware Constitution now reads in relevant part:

Appointments to the office of the

State Judiciary shall at all times be

subject to all of the following

limitations:

First, three of the five Justices of

the Supreme Court in office at the

same time, shall be of one major

political party, and two of said

Justices shall be of the other major

political party.

Second, at any time when the total

number of Judges of the Superior

Court shall be an even number not

more than one-half of the members

of all such offices shall be of the

same political party; and at any

time when the number of such

offices shall be an odd number,

then not more than a bare majority

of the members of all such offices

shall be of the same major political

party, the remaining members of

such offices shall be of the other

major political party.

7

Third, at any time when the total

number of the offices of the

Justices of the Supreme Court, the

Judges of the Superior Court, the

Chancellor and all the Vice-

Chancellors shall be an even

number, not more than one-half of

the members of all such offices

shall be of the same major political

party; and at any time when the

total number of such offices shall

be an odd number, then not more

than a bare majority of the

members of all such offices shall

be of the same major political

party; the remaining members of

the Courts above enumerated shall

be of the other major political

party.

Fourth, at any time when the total

number of Judges of the Family

Court shall be an even number, not

more than one-half of the Judges

shall be of the same political party;

and at any time when the total

number of Judges shall be an odd

number, then not more than a

majority of one Judge shall be of

the same political party.

Fifth, at any time when the total

number of Judges of the Court of

8

Common Pleas shall be an even

number, not more than one-half of

the Judges shall be of the same

political party; and at any time

when the total number of Judges

shall be an odd number, then not

more than a majority of one Judge

shall be of the same political

party.8

Thus, the provision is made up of five sections—one

addressing the Supreme Court, one addressing the Superior

Court, one addressing combined membership of those courts

and the Chancery Court, one addressing the Family Court, and,

finally, one addressing the Court of Common Pleas.

Significantly, there are also two separate, but connected,

substantive components: the bare majority component (which

limits the number of judicial positions that can be occupied by

members of a single political party) 9 and the major political

party component (which mandates that the other judicial

positions must be filled with members of the other major

political party in Delaware). In practice, then, most courts

must be filled with Democrats and Republicans exclusively.

8

Del. Const. art. IV, § 3.

9

When there are an even number of judges on a given court,

no more than half of the judicial seats may be held by members

of a single political party. When there is an odd number of

judicial positions, no more than a bare majority (that is, one

seat above half) may be held by members of a party. Id.

9

B. Judicial Nominations in Delaware

Since 1978, Delaware governors have relied on judicial

nominating commissions to identify qualified candidates for

judicial appointments.10 Eleven of the twelve commission

members are appointment by the Governor, and the twelfth is

appointed by the president of the Delaware State Bar

Association with the consent of the Governor.11 The

commission provides a list of three recommended candidates

to the Governor. The Governor is not free to ignore the

commission’s recommendations; if he is not satisfied with the

list, the commission generates another list of candidates.12 The

nominating commission is politically balanced and comprised

of both lawyers and non-lawyers.13

When a judicial position becomes available, the

nominating commission gives public notice of the positions

available, the salary, and the job requirements, including the

party membership required for nomination. For example, in

August 2012, the commission gave notice of five open judicial

positions, of which three were open only to candidates who

were members of the Democratic Party and two were open to

members of either political party.

10

Holland, supra note 3, at 129.

11

See Executive Order 16, available at:

https://governor.delaware.gov/executive-orders/ eo16/.

12

Holland, supra note 3, at 129.

13

Id.

10

C. James Adams’s Search for a Judicial

Position

James Adams, a member of the Delaware State Bar, is

an Independent who desires a judicial position but has not

applied for one due to his current political affiliation.

Throughout his career, Adams was a registered

Democrat and participated with the Democratic Party. In early

2017, that changed, as Adams became an Independent voter for

the first time.14 Adams explained that he changed his

affiliation because he is progressive and grew frustrated with

the centrism of the Democratic Party in Delaware. He now

describes himself as “more of a [Vermont Senator] Bernie

[Sanders] independent.”15

Around the same time, Adams read an essay

questioning the constitutionality of Article IV, Section 3. The

essay focused in large part on the portion of the provision that

requires judicial applicants to be members of one of

Delaware’s two major political parties, and posed the question:

“May Delaware enforce a state law providing that no

Independent or member of a minor party shall be appointed to

a judgeship?”16 After reading the article, Adams decided to

challenge the provision. He filed the instant lawsuit against

John Carney, the Governor of the State of Delaware, in

14

Adams’s new voter registration card, indicating that he is

unaffiliated with a political party, is dated February 13, 2017

and was mailed to him on February 14, 2017. Adams cannot

remember the exact day that he switched his party affiliation.

15

J.A. 74.

16

Id. at 1154.

11

February 2017. At the time he filed the lawsuit, he pointed to

two judicial vacancies that both required Republican

candidates.

Although Adams did not apply for either of those

judicial positions, he has applied to similar positions in the

past. In 2009, Adams applied to be a Family Court

Commissioner, but was not selected. In 2014, Adams

considered applying for judicial positions on the Supreme

Court and the Superior Court; however, at the time he was

registered as a Democrat and the positions were open only to

Republican candidates. Shortly thereafter, in 2015, Adams

retired and assumed emeritus status with the Delaware State

Bar. By 2017 he felt ready to resume searching for a judicial

position, and believed he was a qualified applicant. He

therefore returned to active status in 2017. Notwithstanding

his interest, Adams has refrained from submitting an

application based on his belief that he would not be considered

for a judicial position because of Article IV, Section 3 and his

new affiliation as an Independent voter.

D. The District Court Proceedings17

Both parties filed cross-motions for summary judgment.

The Governor argued primarily that Adams lacks both Article

III and prudential standing to bring his claims, and Adams

argued that the political balance requirement violates the First

17

Both parties consented to the entry of final judgment by a

Magistrate Judge. See Adams v. Hon. John Carney, Dkt. 2,

No. 17 Civ. 181 (MPT) (D. Del. 2017).

12

Amendment because it conditions appointment on a judicial

candidate’s political affiliation.

The District Court determined that Adams had Article

III standing to challenge some, but not all, of the sections of

the provision. Chief Magistrate Judge Thynge considered the

first three sections because they contain both a bare majority

component and a major political party component. She

concluded that although Adams did not apply for an open

judicial position on one of those courts, his application would

have been futile because the openings available around the

time he filed his complaint were not available to Independents

like himself.

Sections four and five, however, contain only the bare

majority component, and Magistrate Judge Thynge concluded

that Adams did not have standing to challenge those sections

because his status as an Independent would not have prevented

his application from being considered. She nevertheless

concluded that he had prudential standing to challenge those

sections and found that sufficient to confer jurisdiction.

Turning to the merits, Magistrate Judge Thynge

determined that Article IV, Section 3 restricted access to a

government position (here, a judgeship) based on political

affiliation. She found that the narrow policymaking exception

laid out in Elrod and Branti, which allows a government

employer to make employment decisions based on political

allegiance for policymakers, did not apply. In reaching that

conclusion, the District Court drew on Third Circuit and

Supreme Court cases emphasizing that a judge’s job is to

apply, rather than create, the law. The District Court also cited

the Delaware Judges’ Code of Judicial Conduct, which

13

mandates that judges refrain from political activity and

instructs judges not to be swayed by personal opinion. Because

political affiliation could not be seen as a necessary trait for

effective judicial decisionmaking, and because the District

Court concluded that judges do not meet the policymaking

exception established in Elrod and Branti, she found the

provision unconstitutional in its entirety. This appeal

18

followed.

Discussion

A. Standing

1. Article III Standing

We begin by addressing Adams’s constitutional

standing. Constitutional standing, also referred to as Article III

standing, is “a threshold issue that must be addressed before

considering issues of prudential standing.”19 Because it is an

essential component of subject matter jurisdiction, if Article III

18

The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s grant of summary

judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).

19

Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 269

(3d Cir. 2016) (quoting Miller v. Nissan Motor Acceptance

Corp., 362 F.3d 209, 221 n.16 (3d Cir. 2004)).

14

standing is lacking, our inquiry must end and Adams’s claim

must be dismissed.20

To satisfy the “irreducible conditional minimum” of

standing, a plaintiff must show that he has: “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision.”21 Of standing’s three

elements, “injury in fact, [is] the ‘first and foremost.’”22 “To

establish injury in fact, a plaintiff must show that he or she

suffered ‘an invasion of a legally protected interest’ that is

‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’”23 However, a plaintiff need not

make futile gestures to establish that injury is actual and not

conjectural.24

It is black letter that standing may not be “dispensed in

gross.”25 Our cases demonstrate that we must ask not only

whether Adams has standing to sue at all, but whether he has

20

See Lance v. Coffman, 549 U.S. 437, 439 (2007).

21

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).

22

Id. (quoting Steel Co. v. Citizens for Better Environment, 523

U.S. 83, 103 (1998)).

23

Id. (quoting Lujan, 504 U.S. at 560).

24

Sammon v. New Jersey Bd. of Medical Examiners, 66 F.3d

639, 643 (3d Cir. 1995).

25

Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645,

1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S.

724, 734 (2008)).

15

standing to challenge part or all of Article IV, Section 3.26

Accordingly, we do not ask only whether Adams has been

injured by Article IV, Section 3 of the Delaware Constitution.

We must identify how, if at all, he has been injured, and

whether that injury stems from all or part of the provision.

Adams desires a judgeship, and he has applied for, or

considered applying for, judicial positions since at least 2009.

If he felt his application would be reviewed, he would consider

applying for a judicial seat on any of Delaware’s five

constitutional courts. But because Adams is an Independent,

he has refrained from submitting an application in light of the

restrictions of Article IV, Section 3.

The District Court agreed with Adams that it would

have been futile to apply for a judicial position on the Supreme

Court, Superior Court, or Chancery Court, because under

Delaware’s constitution, judges on those courts must be

members of one of Delaware’s two major political parties, and

Adams is not. The Governor does not contest that Adams has

constitutional standing to challenge these provisions, and we

agree that Adams has clearly been injured by the major

26

See Contractors Ass’n of E. Pennsylvania, Inc. v. City of

Philadelphia, 6 F.3d 990, 995 (3d Cir. 1993) (“Our standing

inquiry has two parts: whether the Contractors have standing

to challenge the Ordinance at all, and if so, whether they have

standing to challenge all or just part of the Ordinance.”); see

also Service Employee’s Int’l Union, Local 3 v. Municipality

of Mt. Lebanon, 446 F.3d 419, 422 (3d Cir. 2006) (separately

considering a union’s standing to challenge each section of an

allegedly unconstitutional municipality ordinance).

16

political party component and therefore has standing to

challenge it.

But the District Court also concluded that Adams’s

application to either the Family Court or the Court of Common

Pleas “would not have been futile, because there is no party

requirement constitutionally attached to either Court.”27

Adams argues that the bare majority component injures him

independently of the major political party component because

it “limit[s] the right to a bare majority to members of a

‘political party.’”28 In his view, the bare majority component

mandates that one of the two major political parties control a

bare majority of judicial seats on the relevant court, thereby

limiting an Independent’s ability to successfully apply for a

position. The component, however, creates a ceiling for

members of the same political party; it does not create a floor

entitling them to a certain number of judicial seats.29

Therefore, we agree with the District Court’s reading of

Article IV, Section 3 and conclude that Adams does not have

standing to challenge the sections of the provision that contain

only the bare majority component. Nevertheless, the District

Court went on to conclude that Adams did not need to establish

27

J.A. 13. The last two sections of the provision, which cover

the Family Court and the Court of Common Pleas, contain only

the bare majority component.

28

Appellee’s Br. at 13–14.

29

As the District Court explained, the bare majority component

“places no limitations on unaffiliated voters and only affects

judicial candidates of a major political party when the bare

majority of judicial offices on those courts is filled with

individuals affiliated with that major political party.” J.A. 29.

17

constitutional standing because he established prudential

standing. The District Court’s conclusion that prudential

standing can serve as “substitute” standing for a plaintiff who

cannot demonstrate constitutional standing is incorrect. While

Article III standing is a threshold issue that implicates subject

matter jurisdiction, prudential standing is not. Instead, it is a

“judicially self-imposed limit[] on the exercise of federal

jurisdiction.”30 Prudential standing cannot vest a court with

subject matter jurisdiction; therefore, it cannot replace or

substitute for constitutional standing, as without the latter, the

case must be dismissed.31 Therefore, because Adams does not

have Article III standing with respect to the Family Court and

the Court of Common Pleas, we may not consider the merits of

his argument with respect to those courts.

2. Prudential Standing

We next address whether the doctrine of prudential

standing should give us pause before reaching the merits of the

dispute over the first three sections of the political balance

requirement. Even when Article III standing is present, we

look to prudential considerations “to avoid deciding questions

of broad social import where no individual rights would be

vindicated and to limit access to the federal courts to those

litigants best suited to assert a particular claim.”32 Prudential

30

Davis v. City of Philadelphia, 821 F.3d 484, 487 (3d Cir.

2016) (quoting United States v. Windsor, 570 U.S. 744, 757

(2013)).

31

See Lance, 549 U.S. at 439.

32

Joint Stock Society v. UDV N. Am., Inc., 266 F.3d 164, 179

(3d Cir. 2001) (quoting Conte Bros. Auto., Inc. v. Quaker

State-Slick 50, Inc., 165 F.3d 221, 225 (3d Cir. 1998)).

18

standing requires “(1) that a litigant assert his or her own legal

interests rather than those of a third party; (2) that the grievance

not be so abstract as to amount to a generalized grievance; (3)

and that the [plaintiff’s] interests are arguably within the ‘zone

of interests’ protected by the statute, rule, or constitutional

provision on which the claim is based.”33

We see no reason to ignore Adams’s challenge to

Article IV, Section 3 on prudential grounds. Although the

question is surely one of broad social import in Delaware,

Adams has established that aside from his political affiliation,

he feels qualified for a judicial position and intends to apply

for a judicial position if he is able. The provision may be of

interest to many residents of Delaware, but Adams has shown

that he has a particular legal interest in the constitutionality of

Article IV, Section 3 because of his desire to apply for a

judicial position while refraining from associating with either

the Democratic or Republican parties.

The Governor’s arguments to the contrary are

unavailing. He states that Adams’s interest in this case is

“merely an academic exercise” because Adams switched his

political affiliation in the days before filing this Complaint, and

had not applied for a judicial position since 2009 although, as

a registered Democrat until 2017, he could have.34 Essentially,

the Governor’s argument asks us to discredit the portions of

Adams’s deposition in which he explained why he decided to

leave the Democratic Party (he was frustrated by the lack of

progressive Democrats in Delaware) and why he did not apply

for a judicial position after 2009 (he found working for the late

33

Lewis v. Alexander, 685 F.3d 325, 340 (3d Cir. 2012).

34

Appellant’s Br. at 24–25.

19

Beau Biden rewarding and therefore did not consider other

career opportunities until after Biden’s death in 2015). But in

opposing a motion for summary judgment, the Governor was

required to do more than speculate that Adams has deceived

the Court about his genuine interest in applying for a judicial

position.35 The short time period in which Adams changed his

party affiliation, read the law review article, and filed suit,

without more, is insufficient to raise a genuine issue of material

fact about Adams’s prudential standing.

B. The Elrod/Branti Inquiry

We now turn to the heart of this appeal: whether the

sections of Article IV, Section 3 of the Delaware Constitution

that govern the Supreme Court, the Superior Court, and the

Chancery Court run afoul of the First Amendment’s guarantee

of freedom of association. A trio of seminal United States

Supreme Court cases explain the limits on a government

employer’s ability to consider a job candidate’s political

allegiance and govern our analysis here: Elrod,36 Branti,37 and

Rutan.38 We discuss each case in turn.

In Elrod v. Burns, Justice Brennan, writing for the

plurality, recognized that the practice of patronage

dismissals—dismissing a civil servant because his political

affiliation differed from the political party in power—is

35

Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d

Cir. 2016) (a movant may not rely on “speculation and

conjecture in opposing a motion for summary judgment”).

36

427 U.S. 347 (1976).

37

445 U.S. 507 (1980).

38

Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).

20

“inimical to the process which undergirds our system of

government and is at war with the deeper traditions of

democracy embodied in the First Amendment.”39 He

explained that to justify terminating a public employee based

on political allegiance, the government must show that the

practice “further[s] some vital government end by a means that

is least restrictive of freedom of belief and association in

achieving that end, and the benefit gained must outweigh the

loss of constitutionally protected rights.”40 The plurality

suggested that the government’s interest in employee loyalty

would allow it to discharge employees in policymaking

positions based on political allegiance.41 Although “no clear

line can be drawn between policymaking and nonpolicymaking

positions,” the plurality instructed factfinders to consider the

nature of the employee’s responsibilities to determine whether

or not he or she is in a policymaking position.42

The Court next examined the First Amendment

implications of politically-motivated employment decisions in

Branti v. Finkel. Summarizing Elrod, the Court stated that “if

an employee’s private political beliefs would interfere with the

discharge of his public duties, his First Amendment rights may

39

427 U.S. at 357 (internal quotations marks omitted (quoting

Illinois State Employees Union v. Lewis, 473 F.2d 561, 576

(1972))). In a concise concurrence, Justice Stewart, joined by

Justice Blackmun, stated that a “nonpolicymaking,

nonconfidential government employee” may not be discharged

or threatened with discharge on the sole ground of his or her

political beliefs. Id. at 375 (Stewart, J., concurring).

40

Id. at 363.

41

Id. at 367.

42

Id. at 367–68.

21

be required to yield to the State’s vital interest in maintaining

governmental effectiveness and efficiency.”43 The Court,

however, moved away from Elrod’s policymaking distinction

and held that “the ultimate inquiry is not whether the label

‘policymaker’ or ‘confidential’ fits a particular position; rather,

the question is whether the hiring authority can demonstrate

that party affiliation is an appropriate requirement for the

effective performance of the public office involved.”44 The

Court explained that some positions, like that of an election

judge, might be political without being a policymaking role,

and some, like that of a state university football coach, might

involve setting policy without being political.45

In Rutan, the Court confirmed that the general

prohibition on politically-motivated discharge also applies to

decisions to promote, transfer, or hire an employee.46 “Unless

these patronage practices are narrowly tailored to further vital

government interests, we must conclude that they

impermissibly encroach on First Amendment freedoms.”47

The Governor of Delaware sets forth two arguments to

justify his practice of requiring applicants for judicial positions

to be Democrats or Republicans: first, the Governor argues

that because judges are policymakers, they can be hired or fired

based on their political affiliation without restraint, and second,

the Governor argues that even if they are not policymakers,

43

Branti, 445 U.S. at 517.

44

Id. at 518.

45

Id.

46

Rutan, 497 U.S. at 74.

47

Id. at 74.

22

Delaware has an interest in political balance that justifies the

restrictions set forth in Article IV, Section 3.

1. The Policymaking Exception48

In our cases applying Branti, Elrod, and Rutan, we have

set forth criteria to aid us in determining whether an

employee’s job responsibilities would make political party

allegiance an appropriate condition of employment. We

consider “whether the employee has duties that are non-

discretionary or non-technical, participates in discussions or

other meetings, prepares budgets, possesses the authority to

hire or fire other employees, has a high salary, retains power

over others, and can speak in the name of policymakers.”49

The “key factor” is whether an employee in that position “has

meaningful input into decisionmaking concerning the nature

and scope of a major program.”50 Using this analysis, we have

concluded that political affiliation is an appropriate

48

Adams argues that after Branti, the question of whether a

government position involves policymaking is irrelevant. We

disagree. As we have explained before, after Branti, “the fact

that an employee is in a policymaking or confidential position

is relevant to the question of whether political affiliation is a

necessary job requirement but this fact is no longer dispositive

. . . .” Brown v. Trench, 787 F.2d 167, 168–69 (3d Cir. 1986);

see also Galli v. New Jersey Meadowlands Comm’n, 490 F.3d

265, 270 (3d Cir. 2007) (“The exception for ‘policymaking’

jobs exists because political loyalty is essential to the position

itself.”).

49

Galli, 490 F.3d at 271 (citing Brown, 787 F.2d at 169).

50

Id. (quoting Armour v. County of Beaver, PA, 271 F.3d 417,

429 (3d Cir. 2001)).

23

requirement for a director of a veterans’ administrative

services department,51 an assistant director of public

information,52 assistant district attorneys,53 city solicitors and

assistant city solicitors,54 a solicitor for the Northeast

Pennsylvania Hospital and Education Authority,55 and a city

manager,56 among others. We have never before considered

the role of a state judge. We now conclude that a judicial

officer, whether appointed or elected, is not a policymaker.

This outcome is clear from the principles animating

Elrod and Branti. The purpose of the policymaking exception

is to ensure that elected officials may put in place loyal

employees who will not undercut or obstruct the new

administration.57 If a job “cannot properly be conditioned upon

51

Waskovich v. Morgano, 2 F.3d 1292, 1298–1303 (3d Cir.

1993).

52

Brown, 787 F.2d at 169–70.

53

Mummau v. Ranck, 687 F.2d 9, 10 (3d Cir. 1982).

54

Ness v. Marshall, 660 F.2d 517, 520–22 (3d Cir. 1981).

55

Wetzel v. Tucker, 139 F.3d 380, 384–86 (3d Cir. 1998).

56

Curinga v. City of Clairton, 357 F.3d 305, 313 (3d Cir.

2004).

57

Elrod, 427 U.S. at 367 (“A second interest advanced in

support of patronage is the need for political loyalty of

employees, not to the end that effectiveness and efficiency be

insured, but to the end that representative government not be

undercut by tactics obstructing the implementation of policies

of the new administration, policies presumably sanctioned by

the electorate. The justification is not without force, but is

nevertheless inadequate to validate patronage wholesale.

Limiting patronage dismissals to policymaking positions is

sufficient to achieve this governmental end.”).

24

allegiance to the political party in control,” the policymaking

exception is inappropriate.58 Judges simply do not fit this

description. The American Bar Association’s Model Code of

Judicial Conduct instructs judges to promote “independence”

and “impartiality,” not loyalty.59 It also asks judges to refrain

from political or campaign activity.60 The Delaware Code of

Judicial Conduct similarly makes clear that judges must be

“unswayed by partisan interests” and avoid partisan political

activity.61 The Delaware Supreme Court has stated that

Delaware 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.”62

Independence, not political allegiance, is required of Delaware

judges.

Article IV, Section 3 itself illustrates that political

loyalty is not an appropriate job requirement for Delaware

judges. Delaware has chosen to considerably limit the

Governor’s ability to nominate judges on the basis of political

expediency. Instead, the Governor must ensure that there are

sufficient Democratic and Republican judges on the bench.

Far from nominating only judges who will be loyal to his party,

the Governor may be required by Delaware’s constitution to

nominate judges who belong to a different political party. The

Governor, therefore, cannot credibly argue that he must be free

to follow a rule excluding those who do not belong to the two

58

Branti, 445 U.S. at 519.

59

Am. Bar Ass’n Model Code of Judicial Conduct Canon 1.

60

Id. Canon 4.

61

Del. Judges’ Code Judicial Conduct Rules 2.4(A), 4.1.

62

Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007)

(quoting Ewing v. Beck, 520 A. 2d 653, 660 (1987)).

25

major parties in Delaware because allegiance to his party is an

appropriate condition for judicial employment.

Nor are we swayed by his argument that the important

role judges play in Delaware transforms them into political

actors. The Governor argues that by interpreting statutes,

sentencing criminal defendants, and crafting the common law,

judges in Delaware make policy and exercise significant

discretion. But the question before us is not whether judges

make policy,63 it is whether they make policies that necessarily

reflect the political will and partisan goals of the party in

power. That is why, as the Court explained in Branti, a football

coach for a state university cannot be discharged because of

her political affiliation even though she may formulate policy

for the athletic department.64 And why public defenders, who

made some policy decisions in fulfilling their public office,

still could not be fired on the basis of their political

allegiance—because their policymaking activity did not relate

to “any partisan political interest.”65

63

Compare Matthews v. Lucas, 427 U.S. 495, 515 (1976)

(“Nor, in ratifying these statutory classifications, is our role to

hypothesize independently . . . . These matters of practical

judgment and empirical calculation are for Congress.”), with

Wetzel, 139 F.3d at 386 (“Tough legal questions are not

answered mechanically, but rather by the exercise of seasoned

judgment. Judgment is informed by experience and

perspective . . . .”); see generally Gregory v. Ashcroft, 501 U.S.

452, 465–67 (1991) (explaining, without resolving, the debate

over whether judges make policy).

64

Branti, 445 U.S. at 518.

65

Id. at 519.

26

To the extent that Delaware judges create policy, they

do so by deciding individual cases and controversies before

them, not by creating partisan agendas that reflect the interests

of the parties to which they belong.66 Similarly, although the

Governor contends that Delaware judges have meaningful

input into a major government program because they set the

judiciary’s budget and create rules of civil and criminal

procedure, the operation of the judicial branch is not “so

intimately related to [Delaware] policy” that the Governor

would have “the right to receive the complete cooperation and

loyalty of a trusted advisor [in that position].”67

The policymaking inquiry is designed to test whether

the position in question “is one which cannot be performed

effectively except by someone who shares the political beliefs

66

See Branti, 445 U.S. at 519–20 (“[W]hatever policymaking

occurs in the public defender’s officer must relate to the needs

of individual clients and not to any partisan political interests.

. . . Under these circumstances, it would undermine, rather than

promote, the effective performance of an assistant public

defender’s office to make his tenure dependent on his

allegiance to the dominant political party.”).

67

Ness, 660 F.2d at 522 (“[W]e agree with the district court

that, as a matter of law, the duties imposed on city solicitors by

the York Administrative Code and the undisputed functions

entailed by these duties e.g., rendering legal opinions, drafting

ordinances, [and] negotiating contracts define a position for

which party affiliation is an appropriate requirement. In

relying on an attorney to perform these functions so intimately

related to city policy, the mayor has the right to receive the

complete cooperation and loyalty of a trusted adviser, and

should not be expected to settle for less.”).

27

of [the appointing authority].”68 Put simply, while judges

clearly play a significant role in Delaware, that does not make

the judicial position a political role tied to the will of the

Governor and his political preferences. As such, the

policymaking exception does not apply to members of the

judicial branch.

We are aware that two of our sister Circuits have

concluded otherwise. In Kurowski v. Krajewski, the Seventh

Circuit determined that the guiding question in political

affiliation cases was “whether there may be genuine debate

about how best to carry out the duties of the office in question,

and a corresponding need for an employee committed to the

objectives of the reigning faction,” and answered that question

in the affirmative with respect to judges and judges pro

tempore.69 In Newman v. Voinovich, the Sixth Circuit similarly

concluded that judges were policymakers who could be

68

Brown, 787 F.2d at 170. See also Branti, 445 U.S. at 517

(“[I]f an employee’s private political beliefs would interfere

with the discharge of his public duties, his First Amendment

rights may be required to yield to the State’s vital interest in

maintaining governmental effectiveness and efficiency.”).

69

Kurowksi, 848 F.2d 767, 770 (7th Cir. 1988) (“A judge both

makes and implements governmental policy. A judge may be

suspicious of the police or sympathetic to them, stern or lenient

in sentencing, and political debates rage about such questions.

In most states judges are elected, implying that the office has a

political component. Holders of the appointing authority may

seek to ensure that judges agree with them on important

jurisprudential questions.”).

28

appointed on the basis of their partisan affiliation.70 We find

these cases unpersuasive for two reasons.

First, we do not believe, as the Seventh Circuit does,

that the policymaking exception described in Elrod and Branti

is merely “shorthand for a broad category of public employees

whose work is politically sensitive and who exercise

significant discretion in the performance of their duties.”71

Under the Seventh Circuit’s view, so long as employees make

decisions involving issues about which “political debates

rage,” they may be hired or fired for their party affiliation.72

We have always more narrowly applied the policymaking

exception to only the class of employees whose jobs “cannot

be performed effectively except by someone who shares the

political beliefs of [the appointing authority].”73 There can be

no serious question that judicial candidates of different

political parties can effectively serve as state judges. Thus,

while “political debates rage” about issues that judges must

decide in the course of their state employment, we do not

believe that this leaves judges entirely at the whim of state

70

Newman, 986 F.2d 159, 163 (6th Cir. 1993) (“We agree with

the holding in Kurowski that judges are policymakers because

their political beliefs influence and dictate their decisions on

important jurisprudential matters. . . . Therefore, we believe

that Governor Voinovich’s appointment of judges based on

political considerations is consistent with Elrod, Branti, and

Rutan.”).

71

Hagan v. Quinn, 867 F.3d 816, 824 (7th Cir. 2017) (finding

that arbitrators on the Illinois Workers’ Compensation

Commission are policymakers).

72

Kurowski, 848 F.2d at 770.

73

Brown, 787 F.2d at 170.

29

governors and the patronage of the ruling party. While states

have nearly unfettered discretion to select state judges, states

cannot condition judicial positions on partisan political

affiliation alone.

Second, the opinions in Kurowski and Newman conflate

an appointing authority’s ability to consider the political

beliefs and ideologies of state employees with that authority’s

ability to condition employment on party loyalty. Under our

case law, discrimination based on political patronage is only

actionable where the employee’s political affiliation was a

“substantial or motivating factor in the government’s

employment decision.”74 Elrod and Branti protect

affiliation—and decisions not to affiliate—with a political

party. We have never read them to prohibit an appointing

official from considering a job candidate’s views on questions

and issues related to the job itself. There is a wide gulf between

a governor asking a judicial candidate about his philosophy on

sentencing, for example, and a governor posting a sign that

says “Communists need not apply.”75 The former does not run

afoul of the First Amendment; but in our view, the latter does.

Because the approach of the Sixth and Seventh Circuits would

allow governors both to weigh an individual candidate’s

political beliefs and to condition judicial positions on party

allegiance, we must disagree.

We therefore conclude that state judges do not fall

within the policymaking exception because affiliation with a

74

Galli, 490 F.3d at 271.

75

See Keyishian v. Bd. Of Regents of Univ. of State of N.Y., 385

U.S. 589, 605–10 (1967).

30

particular political party is not a requirement for the effective

performance of the judicial role.

2. Delaware’s Interest in Political Balance

We next consider the Governor’s second argument,

that even if state judges are not policymakers, their political

affiliation is still an appropriate condition of state employment.

The Court in Rutan emphasized that politically motivated

employment practices could be constitutional if they are

“narrowly tailored to further vital government interests.”76

While most cases following Branti have focused on the

policymaking exception, which relates to a state’s interest in

the loyalty and efficiency of key state employees, the Governor

argues that Article IV, Section 3 can be justified by a different

interest—the interest in political balance. We need not dwell

long on whether Delaware possesses a “vital state interest” in

a politically balanced judiciary, because Delaware’s practice of

excluding Independents and third party voters from judicial

employment is not narrowly tailored to that interest.

The Governor posits that the Supreme Court has

always recognized the permissibility of conditioning

appointments on political affiliation when the goal is to ensure

political balance. In Branti, the Court stated that “if a State’s

election laws require that precincts be supervised by two

election judges of different parties, a Republican judge could

be legitimately discharged solely for changing his party

registration.”77 Similarly, in LoFrisco v. Schaffer and

76

Rutan, 497 U.S. at 74.

77

Branti, 445 U.S. at 518. The Sixth Circuit, following Branti,

has categorically held that employment decisions conditioned

31

Hechinger v. Martin, the Supreme Court affirmed two district

court decisions approving political balance statutes governing

elections for a state’s boards of education and the District of

Columbia’s city council, respectively. 78 The Governor also

points to several federal administrative agencies that use some

form of political balance requirement for decisionmaking

bodies, 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. These

examples show some support for the Governor’s argument, but

unlike elected officials and agency representatives who

explicitly make policy, judges perform purely judicial

functions. Further, it is difficult to see how the logic of

political balance and minority representation extends from

multimember deliberative bodies, like a school board, to

Delaware’s judiciary, most of whom sit alone.79

on political party affiliation are permissible where the position

is one of several “filled by balancing out political party

representation, or that are filled by balancing out selections

made by different government agents or bodies.” McCloud v.

Testa, 97 F.3d 1536, 1557 (6th Cir. 1996).

78

See LoFrisco v. Schaffer, 341 F. Supp. 743, 744–45, 750 (D.

Conn. 1972), aff’d 409 U.S. 972 (1972); Hechinger v. Martin,

411 F. Supp. 650, 653 (D.D.C. 1976), aff’d 429 U.S. 1030

(1977).

79

The Delaware Supreme Court is the only judicial body in

which a panel of judges regularly hears cases as a collective.

Even then, panels are usually comprised of three of the five

judges on the court. The political balance on a panel, therefore,

does not necessarily mirror the political balance of the

32

The Seventh Circuit has also addressed the political

balance interest in the judicial context. In Common Cause

Indiana v. Individual Members of the Indiana Election

Commission, the court considered a municipal ordinance

prohibiting political parties from nominating candidates for

more than half of the eligible seats on its superior court.80 The

Seventh Circuit found that partisan balance concerns are less

compelling with respect to judges, who are “not elected [or

appointed] to represent a particular viewpoint” and instead are

required to “exercise [their] own independent authority to

make decisions that uphold and apply the law fairly and

impartially.”81 The court also emphasized that “partisan

balance amongst the judges who comprise the court, alone, has

little bearing on impartiality” because while it can “serve as a

check against contrary partisan interests,” it does not affect

“the impartiality of individual members.”82

While we share many of the Seventh Circuit’s

concerns about conflating party balance with judicial

impartiality, we need not resolve the issue today. To justify a

rule that impinges an employee’s First Amendment association

rights, the state must show both that the rule promotes “a vital

state interest” and that the rule is “narrowly tailored” to that

interest. Even assuming judicial political balance is a vital

Delaware interest, the Governor must also show that the goals

Supreme Court as a whole. See Randy J. Holland and David

A. Skeel, Jr., Deciding Cases Without Controversy, 5 DEL. L.

REV. 115, 121 (2002).

80

Common Cause, 800 F.3d 913, 915 (7th Cir. 2015).

81

Id. at 922–23.

82

Id.

33

of political balance could not be realized without the restrictive

nature of Article IV, Section 3, and this he has failed to do.

The Governor describes the benefits of balance and

details the popularity Article IV, Section 3 has among

Delaware judges and former judges. But this cannot suffice as

a justification to bar candidates who do not belong to either the

Democratic or Republican parties from seeking judicial

appointment, because the Governor fails to explain why this is

the least restrictive means of achieving political balance.

Because the Governor has not shown that Article IV, Section 3

is narrowly tailored to further a vital state interest, the

infringement on judicial candidates’ association rights is

unconstitutional.

Conclusion

For the foregoing reasons, we find that Adams has

shown that his freedom of association rights were violated by

the political balance requirement that prevented his application

to the Supreme Court, Superior Court, and Chancery Court.

Therefore, we conclude that the first three sections of Article

IV, Section 3 violate the First Amendment. We affirm the

District of Delaware’s order granting summary judgment to

Adams on those sections. Because Adams had no standing to

challenge the sections of Article IV, Section 3 dealing with the

Family Court and the Court of Common Pleas, however, we

reverse the District of Delaware’s order as it pertained to those

sections.

34

McKEE, Circuit Judge, concurring. Judges Restrepo and

Fuentes join.

I join my colleagues’ thoughtful opinion in its entirety.

I write separately merely to add the perspective of someone

who has served as a state court judge in a jurisdiction that

selects judges in general elections preceded by partisan

political campaigning and the fundraising that is endemic to

political campaigns. In doing so, I certainly do not mean to in

anyway cast aspersions upon the many dedicated, intelligent

and hardworking men and women whom the electorate in such

jurisdictions ultimately select to serve as judges. I only wish to

note the potential damage to the image of the judiciary in such

jurisdictions and the extent to which it can undermine the

public’s faith in the judges who are elected.1

All of us have a keen understanding of, and appreciation

for, the fact that the provisions we strike down today were

enacted to ensure selection of a judiciary whose political

balance would serve notice that judicial decisions were devoid

of politics and political motivations. Paradoxically, 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

1

The criticism of systems where judges are elected has stressed

the importance of such irrelevant factors as campaign

contributions and the importance of ballot position. See The

Inquirer Editorial Board, Editorial, Close Down the Circus:

Replace Judicial Elections with Merit Selection, PHILA.

INQUIRER, (July 13, 2018)

(http://www.philly.com/philly/opinion/editorials/judicial-

election-merit-selection-pennsylvania-election-reform-

20180713.html) (“In Pennsylvania we elect judges in partisan

elections . . . The corrosive effects of money work over time

until it is impossible for people to trust the court system.”);

Ryan Briggs, Does Ballot Position Matter? Science Says ‘Yes,’

CITY AND STATE PENNSYLVANIA (Dec. 20, 2016),

https://www.cityandstatepa.com/content/does-ballot-position-

matter-science-says-%E2%80%98yes%E2%80%99 (last

visited Jan. 17, 2019) (“Sheer luck has more to do with

becoming [a] judge in the city [of Philadelphia] than

experience or endorsements.”).

1

rather than negated it. As we explain, the resulting system of

judicial selection is in conflict with the First Amendment right

of association even though it has historically produced an

excellent judiciary; accordingly, it cannot survive this First

Amendment challenge. Although this is as paradoxical as it is

ironic, it is really not surprising that the judicial system that has

resulted from Delaware’s political balance requirements is as

exemplary as the judges who comprise it.

In 2011, then-Delaware Supreme Court Justice Randy

J. Holland presciently observed that the “political balance

provisions appear to prevent the appointment of persons

belonging to a third political party or having no party

affiliation. To date, however, there has been no court challenge

to this requirement under the United States Constitution.”2

Justice Holland’s observation about the absence of challenges

to the 122 year-old constitutional framework that plainly

implicates the First Amendment is understandable given the

well-earned excellent reputation of the state courts it has

produced.

Praise for the Delaware judiciary is nearly universal,

and it is well deserved. Scholars and academics routinely refer

to Delaware’s courts as the preeminent forum for litigation,

particularly for cases involving business disputes.3 On the

bicentennial anniversary of the establishment of the Court of

Chancery, then-Chief Justice Rehnquist observed that the

“Delaware state court system has established its national

preeminence in the field of corporation law” and identified

such hallmarks of the Court of Chancery as its “[j]udicial

efficiency and expertise, a well-paid and well-respected

judiciary, innovative judicial administration [and] courageous

2

Randy J. Holland, THE DELAWARE STATE CONSTITUTION

149 (2011).

3

See, e.g., Omari Scott Simmons, Delaware’s Global Threat,

41 J. OF CORP. L. 217, 224 (2016) (referring to the

“preeminence of Delaware’s courts in resolving corporate

disputes”); Ehud Kamar, A Regulatory Competition Theory of

Indeterminacy in Corporate Law, 98 COLUMBIA L. REV. 1908,

1926 (1998) (“Delaware courts have earned a unique

reputation for quality adjudication”).

2

leadership.”4 Members of the Delaware bench credit the

political balancing requirement for at least part of this success.5

With that national reputation so firmly established, it is perhaps

not surprising that attorneys contemplating judicial candidacy

have not previously challenged this constitutional framework.6

4

William H. Rehnquist, Chief Justice of the United States,

Address at the Bicentennial of the Delaware Court of Chancery

(Sep. 18, 1992) in The Prominence of the Delaware Court of

Chancery in the State-Federal Joint Venture of Providing

Justice, 48 THE BUSINESS LAWYER 1 (1992).

5

See, e.g., Devera B. Scott, et al., The Assault on Judicial

Independence and the Uniquely Delaware Response, 114

PENN ST. L. REV. 217, 243 (2009) (quoting President Judge Jan

R. Jurden as saying the “Delaware judicial nominating process

goes to great pains to ensure a balanced and independent

judiciary, and, therefore, it is no surprise that the public

perceives Delaware courts as fair arbiters of justice.”); E.

Norman Veasey & Christine T. Di Guglielmo, What Happened

in Delaware Corporate Law and Governance from 1992-

2004? A Retrospective on Some Key Developments, 153 U. PA.

L. REV. 1399, 1401 (2005) (former Chief Justice of the

Delaware Supreme Court stating that Delaware’s judicial

“system has served well to provide Delaware with an

independent and depoliticized judiciary and has led . . . to

Delaware’s international attractiveness as the incorporation

domicile of choice.”); Leo E. Strine, Jr., The Delaware Way:

How We Do Corporate Law and Some of the New Challenges

We (and Europe) Face, 30 DEL. J. CORP. L. 673, 683 (2005)

(Chief Justice of the Delaware Supreme Court noting that its

judicial selection process has resulted “in a centrist group of

jurists committed to the sound and faithful application of the

law.”).

6

Indeed, one of this court’s two courtrooms is named for

Collins J. Seitz; a legendary judge of national prominence who

served with great distinction as a judge on the Delaware Court

of Chancery before being appointed to this court by President

Johnson in 1966.

While sitting on the Delaware Court of Chancery, Judge

Seitz decided Belton v. Gebhart, 87 A.2d 862 (1952) in which

he courageously ordered the desegregation of the Delaware

public schools two years before the United States Supreme

Court struck down the doctrine of “separate but equal” in

3

But that excellence cannot justify the constitutional

transgression that is baked into the selection process. As we

explain,7 despite the state’s interest in achieving a judicial

system that is as fair in fact as it is in appearance, the provisions

of the Delaware Constitution restricting who can apply for

judicial appointment are not narrowly tailored to achieve their

laudatory objectives. Accordingly, we need not decide whether

Delaware has a “vital state interest” that justifies the limitations

on political affiliation. That question may be decided in a

future case. Moreover, Delaware may choose to amend its

Constitution in a manner that achieves the goals of the

problematic political affiliation requirements without their

attendant constitutional infirmities.

No matter what ensues, I have little doubt that the

constitutional provisions which we today invalidate have

resulted in a political and legal culture that will ensure the

Brown v. Bd. Of Educ. 347 U.S. 483 (1954). The appeal from

his decision there was one of the four consolidated cases before

the Court in Brown where the Supreme Court affirmed the

view Judge Seitz had expressed in ordering the desegregation

of the Delaware’s schools rather than ordering Delaware to

make its “Negro” schools equal to those serving White

students. In Belton, Judge Seitz based his ruling on his factual

conclusion that the Negro schools were inferior to White

schools and therefore not equal; the approach that was then

required under Plessy v. Ferguson, 163 U.S. 537 (1896).

Nevertheless, in reaching his decision, Judge Seitz clearly

stated that the doctrine of Plessy was itself an anathema to the

United States Constitution because segregated schools were,

by definition, unequal. Foreshadowing Brown, he wrote: “I

believe that the ‘separate but equal’ doctrine in education

should be rejected, but I also believe its rejection must come

from [the Supreme Court.].” Belton, 87 A.2d at 865. His

decision was later aptly described as a demonstration of Judge

Seitz’s “courage and moral clarity.” William T. Allen, The

Honorable Collins J. Seitz: Greatness in a Corporate Law

Judge, 16 FALL DEL. LAW 5, 3. (1998).

It is particularly appropriate to mention Judge Collins Seitz

here because he is such a dramatic example of the judicial

excellence I am referring to in extolling Delaware’s judiciary.

7

Maj. Op, at 24–25.

4

continuation of the bipartisan excellence of Delaware’s

judiciary. That culture appears to be so firmly woven into the

fabric of Delaware’s legal tradition that it will almost certainly

endure in the absence of the political affiliation requirements

that run afoul of the First Amendment.

5