Reply Brief — John C. Carney, Governor of Delaware, Petitioner v. James R. Adams

No. 19-309

In the Supreme Court of the United States

__________

GOVERNOR OF DELAWARE, PETITIONER

v.

JAMES R. ADAMS, RESPONDENT

__________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

REPLY TO BRIEF IN OPPOSITION

__________

RANDY J. HOLLAND

Wilson Sonsini Goodrich

& Rosati, PC

222 Delaware Avenue

Suite 800

Wilmington, DE 19801

(302) 304-7600

DAVID C. MCBRIDE

MARTIN S. LESSNER

PILAR G. KRAMAN

Young Conaway Stargatt

& Taylor, LLP

1000 North King Street

Wilmington, DE 19801

(302) 571-6600

MICHAEL W. MCCONNELL

Counsel of Record

Wilson Sonsini Goodrich

& Rosati, PC

650 Page Mill Road

Palo Alto, CA 94304

(650) 493-9300

mmcconnell@wsgr.com

STEFFEN N. JOHNSON

BRIAN J. LEVY

Wilson Sonsini Goodrich

& Rosati, PC

1700 K Street, N.W.

Washington, DC 20006

(202) 973-8800

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... ii

REPLY TO BRIEF IN OPPOSITION....................... 1

CONCLUSION ........................................................ 12

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alaska v. Arctic Maid,

366 U.S. 199 (1961) ................................................ 2

Ayotte v. Planned Parenthood of N. New England,

546 U.S. 320 (2006) ............................................ 7, 8

Branti v. Finkel,

445 U.S. 507 (1980) ...................................... 1, 4, 10

Chisom v. Roemer,

501 U.S. 380 (1991) ............................................ 6, 9

Common Cause Ind. v. Individual Members of Ind.

Election Comm’n,

800 F.3d 913 (7th Cir. 2015) .......................... 10, 11

Elrod v. Burns,

427 U.S. 347 (1976) ...................................... 1, 4, 10

Garretto v. Cooperman,

510 F. Supp. 816 (S.D.N.Y. 1981) .......................... 5

Gregory v. Ashcroft,

501 U.S. 452 (1991) .................................... 2, 5, 6, 9

Kurowski v. Krajewski,

848 F.2d 767 (7th Cir. 1988) .................... 3, 4, 5, 10

Leavitt v. Jane L.,

518 U.S. 137 (1996) (per curiam) .......................... 8

Newman v. Voinovich,

986 F.2d 159 (6th Cir. 1993) .......................... 3, 4, 5

Randall v. Sorrell,

548 U.S. 230 (2006) ................................................ 7

iii

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ............................................ 4, 10

Walsh v. Heilmann,

472 F.3d 504 (7th Cir. 2006) .............................. 4, 5

Williams-Yulee v. Fla. Bar,

135 S. Ct. 1656 (2015) ...................................... 6, 12

Zobel v. Williams,

457 U.S. 55 (1982) .................................................. 7

Constitutional Provisions

Haw. Const. art. IV, § 2............................................... 1

Ky. Const. § 118........................................................... 1

N.M. Const art. VI, § 35.. ............................................ 1

Statutes

220 Ill. Comp. Stat. 5/2-101 ........................................ 1

Mo. Rev. Stat. § 260.365 ............................................. 2

N.C. Gen. Stat. § 143B-350 ......................................... 2

Rules

Rule 10 ......................................................................... 7

Secondary Sources

Douglas Keith, Judicial Nominating Commissions,

Brennan Ctr. for Justice (May 29, 2019) .............. 1

Alexandra B. Klass, Public Utilities and Transportation Electrification, 104 Iowa L. Rev. 545 (2019).. 1

iv

Antonin Scalia, Common-Law Courts in a Civil-Law

System: The Role of United States Federal Courts

in Interpreting the Constitution and Laws,

Tanner Lectures on Human Values (Mar. 8–9,

1995) ....................................................................... 9

Ryan Scoville, The New General Law of Severability,

91 Tex. L. Rev. 543 (2013) ..................................... 7

U.S. Chamber Institute for Legal Reform, 2019

Lawsuit Climate Survey: Ranking the States

(Sept. 28, 2019) .................................................... 10

REPLY TO BRIEF IN OPPOSITION

In an express and acknowledged split from other

circuits, the Third Circuit has confined Elrod-Branti’s

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].’” App. 28a (brackets in original).

This excludes not only judges, but members of judicial

nominating bodies, regulators, and other agencies designed to be nonpartisan and independent of the appointing authority. Nothing in Elrod or Branti supports that result; it conflicts with every other decision

on the issue; and it upends the state constitutional political balance requirements that have helped make

Delaware’s courts the preeminent forum for resolving

disputes for businesses from all over the world.

Adams’ brief in opposition opens with the point

that no other State has a judicial selection system just

like Delaware’s. True. But the holding below jeopardizes any system that uses bipartisanship to ensure independence from political control. That includes sixteen States that require bipartisan balance on their

judicial selection committees 1 and the many States

that do so for regulatory commissions.2

Douglas Keith, Judicial Nominating Commissions 6,

Brennan Ctr. for Justice (May 29, 2019); see, e.g., Ky.

Const. § 118 (mandating political balance between the two

major parties); N.M. Const. art. VI, § 35 (same).

1

See Alexandra B. Klass, Public Utilities and Transportation Electrification, 104 Iowa L. Rev. 545, 614 (2019)

(“Most state [public utility] commissions also have political

balance requirements[.]”); Haw. Const. art. IV, § 2; 220 Ill.

2

2

Even if the decision below affected only Delaware’s

judiciary, however, certiorari would be warranted. It

is a weighty matter for a federal court to invalidate a

State’s longstanding system of choosing judges. See

Alaska v. Arctic Maid, 366 U.S. 199, 202 (1961) (reviewing whether an Alaskan tax unduly burdened interstate commerce “because of the importance of the

ruling to the new State of Alaska”). As this Court explained in Gregory v. Ashcroft, the States’ sovereign

right “to determine the qualifications of their most important government officials”—including “those who

sit as their judges”—“lies at the heart of representative government.” 501 U.S. 452, 460, 463 (1991).

That principle is especially important in the case

of the Delaware courts, which are regarded as “exemplary” and “preeminent” by courts, scholars, the business community worldwide, independent studies, and

a former Chief Justice of this Court. App. 38a, 39a.

The “unique” character of the Delaware courts (Opp.

2) is a matter of national importance. And if the system of choosing judges that produced that “unique”

reputation for objectivity and stability is to be struck

down under the United States Constitution, the ruling should come from this Court—not from an isolated

circuit court ruling that breaks from every other decision and rests on a questionable reading of precedent.

Comp. Stat. 5/2-101; Mo. Rev. Stat. § 260.365; N.C. Gen.

Stat. § 143B-350(b)(1). Adams says that we “concede[] that

such regulatory agencies make policy.” Opp. 5. The point,

however, is that regulatory commissioners are not “policymakers” under the Third Circuit’s definition, which is limited to “jobs [that] ‘cannot be performed effectively except

by someone who shares the [appointer’s] political beliefs.’”

App. 28a; see Amicus Br. of Former Chief Justices 6–11.

3

1. Adams spends pages attempting to distinguish

the cases that conflict with the decision below. Opp.

7–10. None of his novel factual distinctions, however,

diminishes the acknowledged circuit split, which

turns on the governing legal framework, not the precise details of the appointment scheme.

That is plain from the opinions. Immediately after

describing its holding—“the policymaking exception

does not apply to members of the judicial branch”—

the Third Circuit acknowledged “that two of our sister

Circuits have concluded otherwise.” App. 27a. The

court then offered “two reasons” it deemed those cases

“unpersuasive”—both of them legal, not factual, in nature.3 Notably, the Sixth and Seventh Circuits each

considered and rejected the Third Circuit’s test, stating: “‘Neither Elrod nor Branti makes anything turn

on the relation between the job in question and the

implementation of the appointing officer’s policies.’”

Newman v. Voinovich, 986 F.2d 159, 163 (6th Cir.

1993), quoting Kurowski v. Krajewski, 848 F.2d 767,

770 (7th Cir. 1988).

a. Undeterred, Adams says the decisions we cited

(with one exception) “do not involve mandatory political discrimination,” just appointing authorities who

“made a voluntary choice” to favor applicants on par-

App. 28a (rejecting the view “that the policymaking

exception” is “‘shorthand for a broad category of public employees whose work is politically sensitive and who exercise significant discretion in the performance of their duties’”); App. 29a (rejecting “the approach of the Sixth and

Seventh Circuits,” which “would allow governors both to

weigh an individual candidate’s political beliefs and to condition judicial positions on party allegiance”).

3

4

tisan grounds. Opp. 7, 4. But the same is true of Elrod, Branti, and Rutan. See Elrod v. Burns, 427 U.S.

347, 351 (1976) (involving the “practice of the Sheriff”);

Branti v. Finkel, 445 U.S. 507, 509–510 (1980) (public

defender’s discretionary hiring); Rutan v. Republican

Party of Ill., 497 U.S. 62, 65–66 (1990) (governor’s discretionary exemptions from hiring freeze). No decision has drawn any distinction between partisan affiliation requirements imposed by law and those employed as a matter of discretion. And such a distinction would be perverse, since any use of partisan affiliation to restrict the appointing authority’s freedom to

populate the courts or other bodies with appointees of

a particular party will in practice take the form of a

“mandatory” limit.

b. Adams next argues that the cases we cited involved “temporary appointments pending the next judicial election,” rather than appointments “for a full

term.” Opp. 2. But that makes no constitutional difference. Neither Newman nor Kurowski mentioned

the temporary nature of the position in analyzing this

issue, and the Seventh Circuit has expressly rejected

the distinction. See Walsh v. Heilmann, 472 F.3d 504,

506 (7th Cir. 2006) (denying that “Kurowski is a sport

that should be limited to appointed part-time judges”).

c. Adams also declares that “none of Petitioner’s

cases explain how ‘party affiliation is an appropriate

requirement for the effective performance of the public office involved.’” Opp. 9. That is simply untrue.

As the Sixth and Seventh Circuits have explained: “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,” and those who appoint judges

5

“may seek to ensure that judges agree with them on

important jurisprudential questions.” Newman, 986

F.2d at 162–163, quoting Kurowski, 848 F.2d at 770.

Others have provided similar analysis. E.g., Newman,

965 F.2d at 165 (Jones, J., concurring) (“Party affiliation may provide some insight to the types of philosophies a prospective judge maintains.”); Walsh, 472

F.3d at 505; Garretto v. Cooperman, 510 F. Supp. 816,

819 (S.D.N.Y. 1981), aff’d, 794 F.2d 676 (2d Cir. 1984).

And extensive scholarship that Adams ignores supports the conclusion that the bipartisan composition

of judicial panels makes a difference. Pet. 22–24.

d. Finally, Adams asserts that “[our] cases appear

to ignore the rationale for the ‘policymaker’ exception,

i.e., to ensure that those employees will promote and

implement the agenda of the administration.” Opp. 9.

On the contrary, other courts have not “ignored” this

point; they have considered and rejected it: “Neither

Elrod nor Branti makes anything turn on the relation

between the job in question and the implementation

of the appointing officer’s policies.” Newman, 986

F.2d at 163; Kurowski, 848 F.2d at 770.

2. Certiorari is also warranted to preserve the

sovereign authority of Delaware and other States “to

determine the qualifications of their most important

government officials,” including their “judges”—“an

authority that lies at the heart of representative government.” Gregory, 501 U.S. at 460, 463; Pet. 27–30.

Adams barely touches on this important point, dismissing Gregory in two sentences as an “Equal Protection case” that has not been applied “to First

Amendment claims.” Opp. 12. Not so.

6

In Williams-Yulee, a First Amendment challenge

to Florida’s rule barring candidates for elected judgeships from personally soliciting campaign contributions, the Court cited Gregory in upholding the law:

[M]ost States with elected judges have determined that drawing a line between personal solicitation by [judicial] candidates and solicitation by committees is necessary to preserve

public confidence in the integrity of the judiciary. These considered judgments deserve our

respect, especially because they reflect sensitive choices by States in an area central to their

own governance—how to select those who “sit

as their judges.”

135 S. Ct. 1656, 1671 (2015), quoting Gregory, 501 U.S.

at 460.

Quite apart from Williams-Yulee, Gregory built on

more than a century of precedent, and it has repeatedly been cited in contexts other than equal protection.

Pet. 28–29. Indeed, this Court has described Gregory

as “recogniz[ing] that judges do engage in policymaking at some level,” and it has reaffirmed Gregory’s explanation that, in assessing that question, “[i]t may be

sufficient that the appointee is in a position requiring

the exercise of discretion concerning issues of public

importance”—which “certainly describes the bench.”

Chisom v. Roemer, 501 U.S. 380, 399 n.27 (1991),

quoting Gregory, 501 U.S. at 466–467 (internal quotation marks omitted). Given the core state sovereignty

issues at play, this conflict between the decision below

and precedent itself warrants review.

3. Adams’ assertion (at 6) that the petition “does

not claim that the Third Circuit misinterpreted [Elrod

7

and Branti],” but “merely seeks correction of a purported misapplication of a properly stated rule of law,”

requires little response. The petition squarely challenges the Third Circuit’s holding “that partisan affiliation is relevant only when the appointing authority

exercises control over the appointee’s decisions”—i.e.,

only when “jobs ‘cannot be performed effectively’”

without “‘shar[ing] the [appointer’s] political beliefs.’”

Pet. 13, 24, 26. The petition also maintains that the

“test” adopted below “conflicts with” and “cannot be

reconciled with Elrod and Branti.” Pet. 24, 27. Those

points are not mere quibbling about the application of

a correct rule; they are arguments that the rule itself

conflicts with this Court’s precedents—a traditional

ground for granting certiorari. Rule 10(c).

4. On the second question presented, Adams says

the Court does not review state-law severability. But

severability is integrally related to the first question.

As the court below stated: “Only with the (unconstitutional) major political party component does the constitutional provision fulfil its purpose of preventing

single party dominance while ensuring bipartisan

representation.” App. 34a.

In any event, this Court often applies federal severability rules in analyzing the constitutionality of

state laws. Ayotte v. Planned Parenthood of N. New

England, 546 U.S. 320, 328–331 (2006); Zobel v. Williams, 457 U.S. 55, 64–65 (1982); Randall v. Sorrell,

548 U.S. 230, 262 (2006) (plurality); see Ryan Scoville,

The New General Law of Severability, 91 Tex. L. Rev.

543, 547 (2013) (recent “decisions suggest that the

state or federal nature of a statute under review is irrelevant to the source of [federal] severance doctrine”).

In Ayotte, for example, after invalidating various applications of a state law, the Court cited seven of its

8

own cases in holding that it “must next ask: Would the

legislature have preferred what is left of its statute to

no statute at all?” 546 U.S. at 330. Upon concluding

that the lower courts wrongly “invalidated the law

wholesale,” the Court remanded for the lower courts

to address “whether New Hampshire’s legislature intended the statute to be susceptible to [a narrower]

remedy.” Id. at 330–331. That approach would make

sense here too.

Nothing in the Third Circuit’s severability analysis is distinctive to Delaware law, and there is no reason to think Delaware law would countenance the

Third Circuit’s decision. In Leavitt v. Jane L., 518 U.S.

137 (1996) (per curiam), which Adams invokes (at 11),

the Court overturned a Tenth Circuit holding that a

statute regulating “later-term” term abortions was

nonseverable from a statute regulating “earlier-term”

abortions. 518 U.S. at 137–138. After acknowledging

that it did not often “review what purports to be an

application of state law,” the Court explained that it

should “undoubtedly” intervene “where the alternative is allowing blatant federal-court nullification of

state law.” Id. at 144–145; see also id. at 145 (calling

the decision “plainly wrong”). The same is true here.

Indeed, Adams says not a word in defense of the merits of the Third Circuit’s severability analysis.

5. Adams’ other points are merits arguments that

can be considered if certiorari is granted. Opp. 11–21.

We briefly address some of them below, but preliminarily note that Adams caricatures Delaware law.

a. Adams ignores the indisputable facts showing

that Delaware judges engage in policymaking. Pet.

18–21. However one views their other judicial duties,

or those of federal judges, administering the courts

9

and developing the common law plainly call for “policymaking.” As Justice Scalia observed: “Common-law

courts performed two functions: one is to apply the law

(interpret the statute) to the facts. All adjudicators—

French judges, arbitrators, even baseball umpires and

football referees—do that. But the second function,

and the more important one, was to make the law.”4

See also Gregory, 501 U.S. at 466 (common-law courts

must render their own “well-considered judgment[s]”

about “what is best for the community”).

b. Adams equates policymaking with “partisanship” and the lack of “independent judiciary.” Opp. 1.

But “policymaking” can mean simply that the appointee’s job “‘requir[es] the exercise of discretion concerning issues of public importance.’” Chisom, 501 U.S. at

399 n.27. Recognizing that Delaware judges exercise

such a role does not demean them—or make them partisan hacks. Nor is it “inappropriate” for governors to

consider party affiliation as a proxy for how applicants

might view that role. See Professors Amicus Br. 7–14.

c. Adams ignores that the bare majority and major party provisions together serve to check partisan

decisionmaking. By focusing on individual appointments in isolation, he insists that state law reinforces

“fears” that “judges will decide cases based on political

affiliation.” Opp. 1. Viewed as a whole, however, Del-

Antonin Scalia, Common-Law Courts in a Civil-Law

System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, Tanner Lectures on Human Values (Mar. 8–9, 1995) (emphasis added), available

at:

https://tannerlectures.utah.edu/_documents/a-toz/s/scalia97.pdf.

4

10

aware’s system is designed to prevent partisan judging—and, as the high rate of unanimous Delaware Supreme Court opinions confirms, it works. Pet. 32.

d. According to Adams, “nothing in the record”

shows that Delaware’s political balance requirements

have wrought “better decisions” or improved its courts’

“reputation.” Opp. 13. That would come as a surprise

to the panel below, all of whom agreed—on the record

—that the “exemplary” and “preeminent” reputation

of the Delaware judiciary “result[s] from Delaware’s

political balance requirements.” App. 38a–39a.

That view is shared not only by “Delaware judges”

(Opp. 13), but by others including former Chief Justice

Rehnquist, independent groups that study the courts,

scholars, and much of the Fortune 500. Pet. 31–32;

see Amicus Br. for Former Governors 6–7; U.S. Chamber Institute for Legal Reform, 2019 Lawsuit Climate

Survey: Ranking the States 19, 20, 22 (Sept. 28, 2019)

(ranking Delaware’s courts first in Trial Judges’ Impartiality, Trial Judges’ Competence, and Quality of

Appellate Review). Given Delaware’s sovereign authority and the importance of democratic experimentation, that is more than ample grounds for Delaware

to conclude that its system is an “appropriate” means

of ensuring public confidence in its courts. Branti, 445

U.S. at 518; see also Opp. 9 (acknowledging that “the

central question” is whether Delaware’s requirements

are “appropriate” given “the public office involved”).

e. Adams quotes at length from Common Cause

Indiana v. Individual Members of Indiana Election

Commission, 800 F.3d 913 (7th Cir. 2015) (Opp. 14–

16), which does not cite Elrod, Branti, Rutan, or even

Kurowski, but expresses skepticism about the value of

bipartisan requirements in the context of elected

11

judges. The drafters of the Delaware Constitution,

however, took a different view, as was their right.

Tellingly, even the Third Circuit panel acknowledged

that the Delaware provisions have contributed to the

“exemplary” reputation of the Delaware courts. App.

38a–39a; see also Common Cause Indiana, 800 F.3d

at 924 (acknowledging that “partisan balance can

serve as a check against contrary partisan interests”).

Moreover, former Delaware governors of both parties agree that “Delaware’s Constitution has allowed

its Governors to shape a uniquely successful nonpartisan judiciary free from the pressures of party politics

that otherwise would inevitably arise to impede the

faithful balancing of the State’s courts.” Amicus Br.

of Former Governors 7. In short, “Delaware’s political

balance requirement protects against the evils of patronage that this Court warned about in the very cases

the Third Circuit relied upon in holding the requirement unconstitutional.” Id. at 8.

f. Adams does not question that Delaware’s interest in ensuring public confidence in an impartial judiciary is compelling. On the “least restrictive means”

prong, he asserts that the petition “does not challenge

[the lower court’s] finding” that he did not “show that

there were no less restrictive alternatives.” Opp. 20–

21. That is false. The petition pressed this point (at

34–35), and Adams ignores the Third Circuit’s own observation that “[o]nly with the (unconstitutional) major political party component does the constitutional

provision fulfil its purpose of preventing single party

dominance while ensuring bipartisan representation.”

App. 34a. Further, as explained in the petition (at 34),

“[t]he impossibility of perfect tailoring is especially

apparent when the State’s compelling interest is as

intangible as public confidence in the integrity of the

12

judiciary.” Williams-Yulee, 135 S. Ct. at 1671. Here

too, Adams offers no answer.

CONCLUSION

For the foregoing reasons, and those stated in the

petition, certiorari should be granted.

Respectfully submitted,

RANDY J. HOLLAND

Wilson Sonsini Goodrich

& Rosati, PC

222 Delaware Avenue

Suite 800

Wilmington, DE 19801

(302) 304-7600

DAVID C. MCBRIDE

MARTIN S. LESSNER

PILAR G. KRAMAN

Young Conaway Stargatt

& Taylor, LLP

1000 North King Street

Wilmington, DE 19801

(302) 571-6600

MICHAEL W. MCCONNELL

Counsel of Record

Wilson Sonsini Goodrich

& Rosati, PC

650 Page Mill Road

Palo Alto, CA 94304

(650) 493-9300

mmcconnell@wsgr.com

STEFFEN N. JOHNSON

BRIAN J. LEVY

Wilson Sonsini Goodrich

& Rosati, PC

1700 K Street, N.W.

Washington, DC 20006

(202) 973-8800

Counsel for Petitioner

OCTOBER 2019