system unique among the states of constitutionally mandated political balance for its judiciary with the result of the delaware us courts are widely regarded as the least partisan and most professional in the nation the rd circuit  wrong about that the delaware provisions serve a compelling interest in creating a uniquely balanced and nonpartizan traditionally area now to make matters worse the rd circuit invalidated the baron majority provision based soley on  severability despite having found that mr adams has no standing to challenge that requirement that analysis directly conflicts with both federal and state severability doctrine there is no doubt whatsoever that the fair majority requirement can stand on its own it stood on its own for more than fifty years from eight hundred and ninety seven to one hundred and fifty one it stands on its own with respect to delaware's five constitutional court so even today there is not the slightest reason to believe that delaware is constitutional drafters would eliminate the bare majority requirement if they knew the major party provision would be struck down that said both provisions of the delaware constitution passed muster under the  i'd like to begin with the standing issue are cases like gratz in northeastern florida with choir then a plaintiff injured by being excluded from competing for a position need only establish that he's ready and able to apply for it don't you think he's ready and able he shows live action that he is neither or you may be able that he isn't ready and that there were numerous judgeships for which he was constitutionally eligible and didn't apply it would be as if and then and the contractor case a suit was brought by somebody who had been offered a contract and just chose not to take  well i don't think that's applicable the contractor wants to enter into any contract he can to sell his goods but just because adams passed up some judgeships doesn't mean he's not interested  that will become available or was available in the others where mr chief justice he's testified in his deposition under oath that he was interested in all five accords he was specifically asked all five of the courts and his answer was yes well he also said that he would consider to apply for the next available judicial position he said that under oath at the summary judgment stage what more does he have to do well he did not in fact apply for the next available position even when i was eligible for it is there anything else he has to do he says he satisfies all of the qualifications he seemed adamant about wanting a position his actually even his allegations have been have fallen very short of the concrete plans that this court requires in and lou on his allegations of they given the extreme he said he has desired and still desires a judgeship that's from a site amended complaint he says that he would seriously consider if if mr adams was held to have standing here and i think anyone would have standing to challenge the provisions of constitutions that they have academic disagreements with simply by saying  mcconnell i'd like to just move to the merits briefly how i'd like to know how far you'd go with your argument and could delaware for example pass a law requiring all judges to be members of one or the other of the major parties i don't think so your honor the the test in both gregory versus ashcroft and the end ra which which fits together very nicely is that the qualifications have to be reasonably appropriate i can't see under any circumstances that that requirement would be reasonably appropriate to changing  a little here what have you how would your argument be different for this case be different if for example if the your judges were elected and an independent cases would apply i think and out of an out exclusion of and then dependent from being able to be put on the ballot violates not only that person's rights but the voter's right but when  not a matter of constitutional provision but rather a matter of tradition or a practice that has long standing there's this court's precedents i think it's the same because the  cases that the rd circuit relied on l rod and brand piano error and route all involve the exercise of appointment discretion by the appointing officer and so if mr adams this right here about the state constitution it would seem to follow from those cases that he would have a right even as to the executive now he forswear is that he says that isn't as a position which i can understand because it would be fly in the face of of you know of longstanding and universal practice so of course he doesn't want to admit that that's the logical implication of this the position that it is and briefly you've studied this area  of other courts not all that you have offices you have some offices that are for the same major political party but they can't be more than a bare majority and then it the remaining members shall be of the other major political party so why is not just the problem that you said was a problem if a there if a majority or an even number  democrats the rest must be republican and the green party need not apply and can't just as prior there the reason for this is not to exclude independents or the green party but rather as a necessary backstop to the a bare majority requirement because without it it would be just too easy for the governor to name a political ally you know from an allied party i mean take mr adams as a great example of this because he professes to be as after having been a lifelong democrat he professes to be a ferny sanders and pendants so if there were already a democratic majority on the court and the governor were able to name mr adams that would slam the face and frustrate the purposes of the political balance provision i agree there might be a reason for it but how do you get around the fact that the way that it's written and applied is you have to be a republican or a democrat and there are other parties period and so why is that constitutional well it's constitutional because it's advances the state's  compelling governmental interest and political balance on the courts and there and there is no other provisions that would achieve that purpose and a less restrictive way release no want to identify that argument  d the other question i have is is it is the case that the plaintiffs in this case did apply or did say he would apply  to become a judge in any chord were it not for these requirements no why isn't that good enough to give him standing i mean i mean he's if he sued should we have a hearing to decide to be sincere do you think he's insincere in that or what actually i think i think that a st hold this decided in his favor on motion for summary judgment so the question is whether the trier of fact  could on this record conclude mr adams does not have a serious interest serving on the courts and the fact that he could have applied for any number of before and after he changed his political affiliation casts serious doubt on of sincerity thank you counsel justice alito mr mcconnell what do you think is the minimum that mr adams would have to allege in order to have standing suppose he looked up when the next vacancy would occur on any of the cover courts and said i are vague and i think insufficient under this court's precedent in lieu on which requires concrete plans but what you describe probably would satisfy lou on the problem is i don't think he could swear to it given that there have so many judgeships for which he's entirely eligible go by well couldn't you say in the past i was equivocal about this but now i've made up my mind i want to be a judge and a position will open up on this particular court on this particular date and i plan to apply for that wouldn't that be enough not without taking back his sworn statements that he would be interested in serving on any of the five courts because among those five courts two of them are perfectly open to him and he has a better shot i mean legally speaking on those two courts because as an independent he could never pursuing a theory that he read about in the law review not really getting a judge on the merits of your answer to justice thomas about the hypothetical constitutional provision requiring that all of the judges on the particular court the members of a particular party was that that would not be reasonably appropriate whereas the breakdown in the provision that issue here is reasonably appropriate so if we hypothesize a court with nine members what point would the breakdown specified in the constitution be inappropriate if  nine to nothing presumably would not be according to your prior answer but what about eight to one those seven to six to three to four i what point would something become not reasonably appropriate i understood justice thomas hypothetical to the court entirely members of one party i did not see i can't conceive what the legitimate governmental interest would be for that but here the state is doing something that actually quite common sensical makes a great deal of sense if you believe in a bipartisan judiciary and that's what that's the difference here it isn't numbers it's whether the use bipartisan but in your brief you said that this provision in the majority party provision promotes partisan balance and the public's perception of an independent than the bare majority provision at issue in your section in your number two of article three there all that is required of the bare majority is that that the dean no more than a bare majority it doesn't have to be and is in allen and what the major party provision does is it prevents a governor from appointing somebody from an allied already a party that's very closely associated with one of the two major parties or and then independent who may have been a member of the other major party as of course mr adams was or his entire career so this is really a backstop provision to make sure that the fair majority provision works and well clearly if you will if you'll excuse me a moment with that those two examples seems to me that no rightly thinking governor is going to appoint someone from the other party who is completely misaligned with his or her views they could pick the most i don't know if there is such a word the softest  republican the one most closely aligned with democratic values or or something of that nature it just doesn't seem to me that the that the mere membership in a party it's universally used by political science is a proxy for a philosophy and that's especially true now in the last within the last twenty or thirty years when was that mr adams never out and out said he was going to apply and the nd was that in fact he didn't apply and numerous occasions so as to the for us i mean this is his deposition testimony i think that the chief justice referred to this he said i would apply for any judicial position that i thought i was qualified for and i believe i'm qualified for any position that would come up so it isn't to be you it why does it fall short of a concrete plan is basically say and i want to i would apply for any judicial position that would come up that's what that's what he says that's a concrete plan i would apply for any it would be completely futile to apply i mean as long as this constitutional provision is in effect and he's an independent he's not going to get a position so why would we insist that he have to file an application of justice kagan that's just not so of the five constitutional courts two of them do not have a major party provision and he's eligible for every single vacancy on those well if he had said what i what i'm interested in is the three that have both the provisions and the major party is as well what do you have to apply a probably not but that isn't what he said and we have to judge this case according to the case that he is brought to us i guess this seems a lot like the cases where we've said you know when somebody challenges and admissions policy you know in graphs and baccy things like that when not going to make you file the application we're certainly not going to judge what the likelihood of somebody thinking that the application is meritorious is as long as this policy remains in effect you can just challenge the policy but the problem here is that he could apply and would be  eligible and he has stated that he that he's interested in any of the five courts he doesn't apparently care which ones would be it would be as if somebody said i want to go to any public university in texas but i can't but i haven't applied to any of them and one of them i think there's a there's an obstacle thank you counsel justice course which thank  mcconnell i'd like to return to the question of the historical pedigree of these requirements i understand your argument that there are a great many bare majority requirements across the country and across elections prior to that but i think it was in fact an analog of but there are certainly no examples and in history of provisions of the sort being regarded as unconstitutional question the major party provision prohibits independence from service serving is as judges and that's quite a stir quite a sweeping rule and i as i understand you you you've indicated that you'd agree that that violates the equal protection clause as applied to elections elect to elected positions but you indicate that it's somehow very different with respect to appointed position and i guess i'm not clear why given the absence of any historically rooted tradition along these lines with respect to the major party requirement i understand your argument that it serves as a backstop for the bare majority rule which does have historical aniseed and plenty of them but near as i can tell none of those has ever included this backstop before this is a novel thing and it does does prohibit percentage of the population from participating in the process just just a score of six men make two points about this st although i can't point to a specific use of this particular matter this court has approved any number of limitations on st amendment rights as a condition to public service had checked cases for example or a much more severe limitation on free speech right good applying to lots more people for lots more possession of and the court has as consistently upheld them but secondly as to the uniqueness here this actually i think points and delaware's favor it is true that delaware is the the point he says once i'm eligible i will apply and i took your answer to justice kagan and then to be well he's applying to many courts and i guess i don't understand why if he says i'm interested in any of three or four different courts that defeats his intent to apply for standing purposes just as cavanagh when he says he's interested in any of the five courts and there are positions for which he is eligible constitutionally eligible on some of those courts it indicates that his actions at least do not conform to his words well he's not eligible because he's not a republican or democrat is eligible for two of the five courts including the one for which is qualifications with seem to be the best match namely the family court on the merits question can a state exclude republicans and democrats from being judges in a well only independence to be judges just cavanaugh thought about that and i think it's a difficult question i don't i can't answer that a definite no i think it is not impossible  not him that a state has the constitutional authority under gregory versus ashcroft and other cases to say the judges something i may not be right that members of any party why this provision is not really about whether independence can do a good job as judges it is about governors and and whom they can apply and the limitation applies to the governor it's a separation of powers type provision  governor simply used to discretion to balance the courts nobody would even a bat an eyelash obviously constitutional it was very odd to say that the constitution cannot direct the governor and his exercise of discretion but it's the governor who might very well name and then a supposedly independent who is in fact an ally of his party and that's what this  guess there's a mismatch are you leave between the state's interest and excluding independence altogether from being judges because independents can certainly when you agree that independence could serve the purpose of achieving a balanced nonpartisan or bipartisan judiciary absolutely but giving governors the discretion to name independence or allied parties would frustrate the st doesn't the matters that come before them and lead to bear and impartial decisions in other words they wanted the judiciary to remain stable balanced and nonpartizan even when elections go on for one party for a period of time now their decision has survived the test of fire for the last twenty seven years one party has held both the governorship and the senate and delaware but the courts have remained balanced and nonpartisan that is a remarkable achievement we may not be able to prove with scientific that article four section three of the cause but we don't want to risk it states all over the country use partisan affiliation as part of judicial selection with part of fun elections and partisan appointments delaware should be able to use partisan affiliation to bring our political balance thank you thank you counsel mr hanger mr chief justice it may have please the court dollars constitution denies mr adams the opportunity to apply for a judgeship because he does not belong to a major political party the language political party excludes on is really asking this court to rewrite the provisions under the guise of severance and that should be left to the delaware legislature this phrasal promotable party affects all the issues before the court a party who suffers unequal treatment and standing to challenge a discriminatory affiliations determined to of how that shows will vote in a case and this court from a to its own history as a refutation of that premise if this court accepts the premise it's the end of the idea of an independent judiciary and if this court rejects the premise then irrespective of the standard of review challenge provisions must fall traditional engineering to avoid extremism in judging is not an interest that overcomes the st amendment and there's no evidence that political discrimination has had any beneficial effect on the quality of judge on on any corner and yet there were several opportunities for him to apply to judgeships for which he was qualified and he didn't do it so why should we not take his standing assertions ability to undertake the ash and at the terms of stand one of the strongest statement he has is that he would consider and apply for the job now if if i got an application for a clerkship from someone who said she would consider and apply for the job i really wouldn't know what to make of that well it might be in the context where there is no restriction on your decision making in terms of  decision in williams uli and in his reply brief as well you don't cite that case at all in your brief if i'm remembering correctly and i wondered what your response was to their reliance on it the williams fault restrictions on the ability of a judge to do something or a political ploy to do something which reflects a political judgment in this case in this question of political thought no one expects a judge no matter what their political persuasion to come out and advocate in the role of a judge for a particular political party those cases are distinguished from from this case thank you counsel justice thomas sufficiently concrete to amount to an injury this looks and his intentions of someday doing something did not amount to an injury this looks much like that and would you tell me how this differs from the problem that we had and move on certainly to justice thomas and the i point to the friends of the earth versus laidlaw decision of this court in this if you don't need anything more concrete than his indication that he would have applied how formal would this path would that have to be his intention the announcement of his intention could he just say to a couple of friends at a cocktail party oh i think i'm going i would have applied for this job but for the fact that i'm not a republican or democrat for does it have to be in writing what does it have to be a very good question is the question then becomes going back to the law case the court uses the phrase concrete plans but there's no interpretation of what constitutes a concrete plan a statement under oath as is in this case that that was well what was on his mind some evidence that he was literally misleading or a law he should be such a one of you have a long history of saying i'm going to do this and i'm going to do that and never really gets around to doing it it would depend on the circumstances or there may be things that come up it was life that interfere with a given opportunity nonetheless the official one is a constant record of saying i'm going to do this and it doesn't that is some evidence coming against that person justice prior as i understand it and correct me if i'm wrong two of the five courts he's perfectly eligible and always have been to apply for because you can be an independent of the family court and court of common plea there were only thinking about the other three other than the others that write strikes ok so as to the other three what should we do in there was a summary judgment smith they found did not rise to the level of creating an inference of insincerity you know i know that when sincerity is not the same thing as having a chance to you could have had any chance you wanted to and then there's the very often the case where someone says i want to do something but i can't mean i heard of i sincerely want to go to the north pole nonetheless i can't go yes if if if if there is standing requirement thank you council justice alito have because this issue of standing was decided at summary judgment we are required to look at the record in the light most say that means that he would actually apply he said he would consider and apply if that were to apply was not there it would be pure consideration up to souter and apply few positive affirmative action well if you're going to apply you're done considering and if you're going to consider you haven't made up your mind whether you're going to apply isn't that right  marathon in just a just a couple seconds that are left suppose a governor suppose there's no provision like this one but the governor says under no circumstances will i ever a point to any judge ship person registered as a member of the other party from the standpoint of somebody who wants to apply for a judgeship is there any difference between that situation and the situation here no because becomes an effective unconstitutional  independent to see judicial appointment and that right is being limited by this majority party rule then there is the governor's right under l broad and brandy to decide who he wants to appoint to a person position and he could maybe not this cup winner but another governor might want an independent or another rd party applicants but the constitution stops him from doing that and that's where i think al royce and grantee would have quite a lot to say about whether or not your political affiliations have much to do with your decision making and that i think would be what we would have to face given justice alito is question a governor who says i won't help point somebody from another party under any circumstance but that's not the case here the case here involves the state and it's the state's choice for its own interests balancing partisanship and promoting an independent judiciary who says i want to prohibit your client and the state and the governor from acting in a particular way i see from selecting you merely because you're an independent and it seems to me that the bigger majority rule that o prosecution in this case is more than adequate to take care of those two interest but the majority party rule doesn't it isn't but you're arguing against both can you tell me out and remain coherent and i'll just give the st example regarding developer supreme court the languorous of three of the five justices of the supreme court and off at the same time i don't mean i don't mean to stop you because i'm mostly interested in the  one take a look all you have to do is take out the last proposition the great remaining members of such off the shelby of the other major political party take out the word mayor that's a governor comes in and he says you know i'm a democrat and i'm committed to appointing only democrats to the bench they share my judicial philosophy that's what i'm doing and if you think that that would be unconstitutional i or alternatively let's take another hypothetical suppose governor comes in and says i'm going to do i like this delaware scheme we don't have one in my state but i'm going to do exactly th i'm going to make sure that there's only a bare majority and make sure that it's even likely that i did between democrats and republicans as governor couldn't do that either there's no constitutional provision there's no law this is just the governor's view of good judicial appointment making you know who's going to go to the communist cases and the question of communist need not apply which we find which is not acceptable under the st amendment i left us to do and and apply strict scrutiny or some form of heightened scrutiny why does this fail i understood your principle argument to be that this was not the least restrictive alternative so i guess my question is what what would be a less restrictive alternative the less research alternative has already existed in the jail or would a judicial conduct political concerns in making their decision and i think it doesn't that go to something very different time ensures that code of conduct is very important to make sure that judges are ethical but it doesn't do what this law tries to do which is to say we want to create balanced courts we want to do that those for the appearance of justice that those courts well enough political and we also want to do it because we think that those courts will make better decisions they won't go to the extremes they'll challengeable from the for specter of the public who could also say that by creating this political compromise we are agreeing that judges are making political decisions thank you counsel justice gorsuch council we've already discussed standing off a lot but i just want to clear up one final thing that we didn't discuss and that concerns the bare majority requirement the rd circuit held that your client had no standing to contest that because as an independent it doesn't preclude him from taking office in any judicial capacity i did not see a cross petition from you on that i did see one or two straight sentences in your i want to react to this the notion that they might be an odd fit here they've been applied to protect the affiliation rights what the court is called low level employees in the executive branch and here we have and they've also been there to make sure that patronage doesn't go too far here we have a requirement that doesn't concern the rights of to pick a candidate from the opposite party so if that st only seems kind an odd fit and then then there's the overlay of the th amendment which grants states considerable power to organize their own government so long as the republican forms of government and this court has repeatedly emphasized the importance of that right gregory versus ashcroft so can you just reacted to those thoughts  thank you council yes cavanaugh thank you mr chief justice good morning mr finger picking up on a question earlier from justice course it's there is a long tradition of governors considering political affiliation when selecting judges delora seems to just make explicit what has been implicit in many states that leave it to the governor why then given that tradition all practice matters and st amendment out analysis why is that different in kind and governors considering political affiliation because just as cavanagh it's not an exclusive fact taking the federal bench for it just delaware's rule i think i understand that mr mcconnell also identifies i guess what i would describe as the leave well enough alone principle that the results in delaware have been some purp with judges you know collin cites and bill allen and leo strine a norm v z and leading lights of the judiciary what's your response to that argument that it's produced an excellent widely respected judiciary again there's no evidence no over and over people tend to believe it more but there's nothing concrete proof to support that it's not really even into it ok next question is if you were to win here what would happen to partisan balance requirements for federal independent agencies state redistricting commissions state traditional nominating commissions and the like well nothing should directly follow from that these these various agencies and commissions solely on that basis there are other factors in delaware which bring an excellent you to share and will continue to do so without these limitations on the rights of people other than democrats or republicans thanks of course thank you  justice of fryers discussions both with me and with mr finger we talked about sincerity and i even used the word sincerity but i want to emphasize that the ultimate test here isn't whether  mr adams with some fear the question of whether applying would be futile and that's a question of fact it's not a question of therapy and then ultimately the question of whether a trier of fact reasonable trier of fact could would like to emphasize here is the severability is a which we didn't discuss a great deal today is of enormous practical importance because even if the that and it does we know that it could stand on its own because it does it has for so many years and that's of grave importance to the state that even if we were to lose on the major party provision the the that the bare majority the provision still stand but finally i want to turn to the merits which is really what matters here and that we believe that under gregory versus ashcroft as well as brandy and think and all rod the strict scrutiny is not appropriate the language used by the courts in in the patronage cases all involve reasonableness is there a reasonable relation between the requirement and this is because it's basically an unconstitutional conditions case what mr adams is alleging is that he's being denied an available public benefit because of his exercise of a constitutional right but that kind of an argument doesn't work if the restriction is germane to the purpose for which the benefit was was created so strict scrutiny should not apply but even if it did apply the question is whether the calendar believes in the papers a compelling governmental interest in the least restrictive way and here no one doubts that the state has a compelling interest in promoting public confidence in the judiciary now the bare majority requirement may be sufficient to achieve that interest under normal circumstances where political parties seesaw back and forth but the major party provision makes the bare majority provision more effective especially under the