Does The First Amendment Prohibit States In Their Attempt To Reduce Partisanship In Their Courts?

Should we have partisanship in the leadership of State courts? There are some states that have identified partisan labels on their Supreme Courts and then there are states that the partisan affiliation is the worst kept secret in the state. So who gets to decide what the rules should be for each state? There is a circuit split on an issue central to the merits question in this case, whether judges are “policymakers.” The Third Circuit said no, but the Second, Sixth, and Seventh Circuits (and, according to the state, “every other court to address the issue”) has said yes. Under Court precedent, if judges are “policymakers,” then the state can use their political affiliation as a qualification without violating the First Amendment. If they are not, then the state must show that its use of political affiliation is necessary to achieve a compelling government interest. This is a high standard, but one that the state argues, in the alternative, that it can satisfy. If the Court reaches the central merits question in this case, it may resolve the circuit split and determine whether judges are “policymakers” that fall under this exception to the First Amendment. Robert Barnes of The Washington Post has an article headlined “Fittingly, Supreme Court term starts with test of political affiliations for judges.”  Delaware has decided that partisan balance on that state’s Supreme Court is essential to maintaining public trust. But can a state do that?It will likely be months before we know. Thanks to How Appealing a blog by Howard Bashman  you can  access via this link the audio and transcript of the U.S. Supreme Court oral argument in Carney v. Adams, No. 19-309.

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