The Supreme Court’s summer recess is now over, and a new term is starting. For the hearings this week, only eight Justices will participate since a replacement for Justice Ruth Bader Ginsburg has not yet been approved by the Senate. If nominee Amy Coney Barrett joins the Court later, she would have the option of listening to the tapes and could join in making the decisions, but she would have no duty to do so.
As the Court did last May, it is reacting to the health threat of the pandemic by holding its hearings remotely, by telephone. Again, it is allowing broadcast of the audio part of its hearings. C-Span TV, among other broadcasters, will provide real-time television airing even though it only presents the audio. Two cases will be heard tomorrow; each is scheduled for one hour.
First case, starting at 10 a.m.:
Carney v. Adams
Background: Americans often debate whether the courts are truly independent of the political wars that are constantly being waged, and that debate has grown more intense in the era of partisan polarization, with both major parties, when in power, seeking to fill the bench with judges they feel they can trust to rule as that party would prefer.
At the state level, this debate often focuses on whether judges should be elected, or appointed. The states are split, about half and half, between those methods. Delaware, the state involved in the first hearing tomorrow, adopted its constitution in 1897 and opted for the appointment method. Duplicating the federal system, Delaware’s governor chooses nominees who then are confirmed or not by the state senate.
Delaware went a considerable step further to try to diminish partisan influence on its courts. It included in its constitution a provision that its supreme court and other state courts must have no more than 50 percent of the judges, or, at most, “a bare majority,” who are affiliated with one major political party. The other seats are reserved for the judges of the other major party. The aim was partisan balance, in hopes of neutralizing party sympathies. Over the decades, that arrangement is believed to have helped Delaware’s courts earn a strong reputation for the quality of its decisions.
That reputation, of course, has an impact beyond Delaware’s own borders. The state is the corporate home of more than half of the companies that are listed on the New York Stock Exchange, and to more than 60 percent of the “Fortune 500” companies. The way Delaware’s courts interpret those companies’ charters under state law can have global influence.
The partisan balance approach was challenged in a lawsuit by a retired Delaware lawyer, James R. Adams, who has been hoping for a judicial seat but cannot qualify for it because he does not belong to either the Democratic or Republican party; he is an independent. Adams sued Governor John Carney, claiming that the allocation of court seats to just those who are affiliated with the two major parties violates his First Amendment right to hold his independent views and still be eligible for a position in government. He won his case in a federal court of appeals, which nullified the partisan formula, and Governor Carney has taken the case on to the Supreme Court.
Adams’ lawsuit relies upon Supreme Court decisions in 1976 and 1980 declaring that it violates the First Amendment right of free speech if the government uses political party affiliation as the basis for hiring, firing or promotion decisions for employees who hold staff positions that do not make policy but only carry out policies made by their superiors. The governor argues that judges are – in a very real sense – makers of policy, so Delaware’s system is exempt from those decisions. Thus, in his view, partisan affiliation is a valid basis for judicial selection especially in the interest of achieving partisan balance. In any event, he insists that this is a matter reserved for state governments under the Tenth Amendment. The governor is relying on a 1991 Supreme Court decision that the states have the power to set retirement ages for their state judges, and doing so is not a form of age discrimination under federal law.
The question before the Court: do state governments have the power, in selecting state court judges, to treat them as policymakers for purposes of using partisan affiliation as a qualification, or non-qualification, for a court seat?
The significance: For years, Chief Justice John G. Roberts, Jr., has been working energetically to fend off the idea that judges are just politicians in black robes. He has tried to persuade the two parties to tone down their feuding over federal judicial appointments, and he has openly rebuked President Trump for suggesting that there are “Obama judges” or “Trump judges.” The partisan feud that has broken out over President Trump’s new nomination of Judge Amy Coney Barrett will be in the background as the Justices weigh this new case on politics and the judiciary.
One of the arguments of those who complain of partisan judges is that they make policy, intruding on the power of executive and legislative officials. The Delaware case puts the Justices in a somewhat awkward position, because they can only rule for Delaware by holding, as a constitutional matter, that judges actually do make policy and to concede that partisan factors are proper in the selecting of judges – two conclusions that would embolden the courts’ critics. On the other hand, to rule for challenger Adams, the Court would have to relax the current majority’s strong support for states’ rights.
How the Court deals with another, complex issue in the case could give a hint about how the Justices feel about the Trump Administration’s pending challenge to the entire Affordable Care Act (“Obamacare”), which comes up for a hearing November 10. That issue is how much constitutional power a court has to strike down an entire law if only one specific part of it violates the Constitution. That’s what happened in the Delaware case; one flaw in the partisan system doomed all of it in the lower court. The Administration contends that all of Obamacare is flawed because the mandate for individuals to buy health insurance was invalid. Obamacare, of course, is not before the Justices in the Delaware case, but this issue of judicial authority clearly is.
Second case, starting at about 11 a.m.:
Texas v. New Mexico
Background: The lore of the American West is filled with bitter, sometimes violent, feuds over the right to use water in the region’s rivers. Historians say there is an old saying out there, “Steal my horse, carry off my wife, but don’t touch my water.” In the Western half of America, the law has always been that the first person to use a river’s water acquires a right to that water. That results from the fact that, in a mostly arid region, water is especially precious so the first user should have a priority right to use it. In the Eastern half of the country, the law is that the person who lives on the bank of the river owns the water that flows past; since water is more abundant, there is considerably less controversy over the right to it.
The case before the Supreme Court involves a dispute between Texas and New Mexico that has been before the Court, in one form or another, for 46 years. It is a kind of lawsuit that, under the Constitution, is designed to begin and end in the Supreme Court (that is, an “Original” case), in which two states are battling over each other’s rights. Water rights disputes between upstream and downstream states are regularly before the Court as Original cases, and they usually run on for years.
Specifically, the new case requires the Court to sort out the legal obligations that the state of New Mexico owes to the state of Texas under a 1947 interstate water agreement (a “Compact,” in constitutional terms), involving the waters of the Pecos River. It originates in New Mexico, and flows downstream into Texas’s Rio Grande River. Under that pact, New Mexico is supposed to release water from reservoirs along the Pecos so that Texas receives the amount of water it was entitled to in 1947, as promised by the Compact.
The latest twist in the case involves Texas’s claim that New Mexico owes it more water than actually is available now to send downstream. The dispute arises in a peculiar way. Some years ago, a major rainstorm filled a big Texas reservoir to capacity, so Texas asked New Mexico to hold back some of its supply until the water would be needed in the future.
New Mexico agreed to do so and to hold the extra water for about a year. But, when the time came to deliver that supply, it turned out that – probably as a result of climate change – quite a bit of the water had evaporated in the heat. Texas is now suing to get New Mexico to make up for the Texas share that evaporated. New Mexico says Texas must do without that share, arguing that the loss was not New Mexico’s fault. A lawyer appointed by the Supreme Court to sort out the dispute recommended that the Court rule for New Mexico, so Texas asked the Court to step in.
The question before the Court: how is an interstate water-sharing compact to be interpreted when a portion of the water promised to a downstream state has been lost by a neutral cause, such as evaporation?
The significance: Interstate disputes involved in Original cases before the Court are often limited to the specific terms of agreements between the states and how those are being enforced, and the outcomes are mostly of interest only to those states and their people. But this case has the potential to lead the Court to provide significant new guidance on the relationship between climate change and the legal responsibilities among the affected states for dealing with the effects of such change. It thus not only could affect future water disputes, but also guide the future of disputes when air pollutants originating in upwind states cause climate harm as the air flows to downwind states. (Maryland, for example, is considered to be a downwind state for purposes of air pollution.)
Two more hearings Tuesday. A description of them will appear here on Monday, in advance.