On December 10, the U.S. Supreme Court issued an opinion in Carney v Adams, 19-309. This is the case over Delaware’s law that does not permit anyone to be appointed to the most important types of courts, unless the individual is a member of a party that has registration of at least 5% of the total. The decision says that the individual who filed the case, James R. Adams, does not have standing to challenge the law. The Court’s opinion, by Justice Stephen Breyer, is devoted entirely to a discussion of standing, and contains no hint of what the U.S. Supreme Court thinks about the Delaware restriction. Here is the opinion.

The opinion is unanimous, but Justice Sonia Sotomayor issued a concurrence, which says, “Because the constitutional questions in this case will likely be raised again, I write separately to highlight two important considerations that may inform their answers.” She then says that when a new case is filed, it would be advisable to send the case to a Delaware state court to rule on whether two provisions of the law can be severed from each other. Besides the law banning independent and minor party judges, Delaware also has a separate law that says no court may have more than a bare majority of members from one party. Probably she thinks that the ban on minor party and independent judges is likely unconstitutional, whereas the “bare majority” law is constitutional. So, as she imagines a future challenge, she hopes that the state courts will rule that the two provisions can be severed from each other.

The concurrence is a hint to the Delaware legislature that it should begin the process of amending the State Constitution to eliminate the ban on minor party and independent judges.

Justice Breyer said Adams doesn’t have standing because his actions showed that he didn’t sincerely want to be appointed to a judicial position. For instance, Adams had said he would “consider” applying for a judicial position. Also, shortly before he filed the case, he changed his bar membership from “active” to “emeritus”, although then he changed it back again. Thanks to Rick Hasen for the link.

On December 9, President Trump asked the U.S. Supreme Court let him intervene in Texas v Pennsylvania, the case in which Texas is suing Pennsylvania, Georgia, Michigan and Wisconsin because Texas thinks those states didn’t certify legal election returns. Here is the Trump brief.