Courthouse Steps Oral Arguments Teleforum: Carney v. Adams

Free Speech & Election Law Practice Group Teleforum

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In Delaware, there is a state constitutional provision that requires the state’s three highest courts to have no more than a “bare majority” of judges to be affiliated with either major political party. James Adams, a Delaware resident and member of the Delaware bar, decided against applying for a judicial position due to the constitutional provision. Adams would not have qualified for the position because he is not a member of either the Republican party or the Democrat party. Adams subsequently filed a lawsuit challenging the constitutional provision that limits judges to members of either the Democratic or Republican parties. The district court found that Adams had partial Article III standing, and decided to review the case on the merits. On the merits, the district court found that the provision in question was unconstitutional in its entirety.  Upon appeal, The United States Court of Appeals for the Third Circuit affirmed in part, but reversed on the provisions for which Adams had been denied Article III standing at the district level. The Supreme Court granted cert and will decide whether a state constitutional amendment that effectively limits the qualifications of judicial applicants based on political affiliations is constitutional. Michael Dimino will join us to discuss the oral arguments and their implications. 


Michael Dimino, Professor of Law, Widener University Commonwealth Law School


Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a special "Courthouse Steps Oral Arguments Event: Carney v. Adams.       My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call. Today, we are fortunate to have with us Professor Michael Dimino, Professor of Law at Widener University Commonwealth Law School.


      After our speaker gives his opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Mike, the floor is yours.


Michael Dimino:  Thank you, Greg. It's a pleasure to be here. It's always nice to participate in Federalist Society events and particularly so when I get the chance to talk about an issue that is timely and as interesting as this one.


      Carney v. Adams was heard today, of course, by an eight-member Court. It will be decided without the participation of Judge Barrett even if she is confirmed. She will not participate in the resolution of this case unless the Court is otherwise split 4-4 and she needs to cast the deciding vote. I say "she" or whoever might be named if she is not confirmed.


      But we would not expect her to participate. Instead, the case is expected to be decided by the eight members of the Court who participated in the oral argument today.


      Carney v. Adams concerns the constitutionality of one section, Article IV Section III of the Delaware State Constitution. It was challenged as a violation of the First Amendment.


      What the section of the state constitution does is that it attempts to ensure a partisan balance on certain of the state courts by requiring that the courts be filled with equal members or simply a bare majority of one of the two major parties with the rest of the seats on that court filled with members of the other party.


      To be specific, the section of the Delaware Constitution applies to the state supreme court and the state superior court. What it says for both of those is that all of the judges on the court must be chosen from the Republican or Democratic parties. It doesn't name them by name; it says "major parties," but it's the Democratic and Republican parties. All the judges must be either Democrats or Republican.


      For courts, if the court has an even number of judges, then there must be even numbers—an equal number of Republican and Democrats. If the court in question has an odd number of judges—like the Delaware Supreme Court does; it has five judges—then a bare majority should be of one party and the remaining judges should be of the other major party.


      The reason they do this is through an innovation at the nineteenth century, a constitutional convention that Delaware had at the end of the nineteenth century. The reason that they adopted this was to promote the nonpartisan administration of justice and to advance public confidence in the courts as nonpartisan institutions. They didn't want the courts to be seen as implementing one party's ideology or one party's policy agenda. Instead, they wanted to be sure that regardless of what party was in power in the rest of government, that the judiciary would be staffed in a bipartisan way.


      One negative effect of this kind of partisan balance, however, is that it affects people's ability to serve as judges and disqualifies people on the basis of their partisan affiliation. For example, if the Delaware Supreme Court, as it does now, has three Democrats and two Republicans and one of the Republicans leaves, well, only Republicans will be eligible to fill that vacancy because if we chose another Democrat, then you'd have a 4-1 court, and that would violate the constitutional rule about the partisan balance on the court.


      If you're not a Republican, then you wouldn't be eligible for that vacancy; you would be excluded from consideration for the vacancy because of your partisan affiliation. People's ability to join a political party is, of course, protected by the First Amendment as an aspect of speech and association.


      The claim is that this constitutional provision calling for partisan balance on the court interferes with/imposes a penalty on the exercise of First Amendment rights by saying, "Well, you can join whatever party you want, but if you are not a Republican, then you are not going to be eligible for this spot." For that reason, it was challenged as unconstitutional.


      A further related effect is that people who are not members of either of the two major parties—that is, people who are independents who are not members of any party at all or people who are members of third parties—those people are not eligible for judgeships at all no matter which party is in power, which party controls the governorship and can make the appointments, regardless of what the partisan balance is on the court currently. Members of minor parties and unaffiliated voters are not eligible for judicial appointments under this rule whatsoever.


      If I can summarize, there are two provisions here that are at issue. There is what the Court referred to today as the bare majority rule, and that prohibits one party from holding more than a bare majority of seats on the court.


      Then, there is the major party rule, which prohibits governors from appointing judges who are not members of the two major parties.


      The bare majority rule and the major party rule.


      Today, at oral argument, there seemed to be considerable support for the bare majority rule. Delaware's interest in achieving this nonpartisan or bipartisan courts to make sure there's some kind of balance in terms of political ideology and party membership on the courts. That interest the Court seemed to be quite sympathetic to.


      However, there seemed to be considerable skepticism or opposition to the major party rule; the idea that the Delaware State Constitution would exclude entirely and forever people who are adherents of minor parties or people who are unaffiliated with either party. The idea that that provision would exclude them from being judges entirely was met with some opposition from at least some of the justices.


      A bit about this case in particular. It was brought by a man named James Adams. He had been a lifelong Democrat, but he left the party in 2017 because the party was not liberal enough for his taste. He viewed himself more as a Bernie Sanders-style independent, and so he left the Democratic party.


He wanted to be a judge, but once he left the Democratic party, he considered it to be futile to apply for a judgeship since the constitutional provisions that I've just referenced rendered him ineligible. He did apply for judicial office once in 2009. At the time, he was a Democrat, so he was eligible, but he was not chosen to fulfill the judicial office, and, then, he considered applying again in 2017 after becoming an independent. But he did not actually follow through and apply. Instead, he challenged the constitutional rule that rendered him ineligible.


The Third Circuit ruled in his favor and struck down this provision, but it created a conflict in doing so with the decisions of two other circuits that addressed similar, though not identical, claims in decisions from the Sixth and Seventh Circuits. Those courts concluded that it was permissible to consider partisan affiliation in the selection of judges because of judges' high-ranking position and their ability to affect policy through their decisions.


The Third Circuit, however, disagreed and held that the partisan balance provisions unconstitutionally interfered with Adams' First Amendment associational right. The court said that the provisions were unconstitutional even as applied to members of the major parties because they would disqualify would-be judges who were not members of the "right" political party at any given moment.


The court went on at considerable length to talk about how judges should not be considered policymakers and because they're not policymakers, in particular, because their job is not to bring about the preferred policies of the political party that is then in power. Even when judges make policy, they do it without the goal of implementing the policy positions of the party in power.


Because of that, the Third Circuit held that judges should be chosen by means other than their political party membership. And for that reason, the court said that it was unconstitutional to exclude a potential judge because of his party affiliation.


That's the way the case gets to the Supreme Court. The merits question is a First Amendment question that relates to so-called patronage decisions, the big three patronage decisions, of Elrod, Branti, and Rutan are the major ones.


But before the Court can get to that First Amendment topic, there is a standing problem that Mr. Adams faces. As I said, he has challenged the constitutionality of this section of the Delaware Constitution without first applying for, and being turned down for, a judgeship because he's an independent.


In 2017, when he became an independent, he says he wanted to be a judge, and he considered applying, but he decided not to apply because he thought it was a waste of time given that the article of Delaware Constitution made him ineligible.


It would be the same sort of thing as to why would I bother to go through and try to run for president if I'm under 35 years old when the Constitution makes me ineligible anyway? And that's what his position was here. Why should I have to go through the motions of filling out an application when the constitution's provision makes it impossible for me to be selected?


For that reason, because it would've been futile for him to apply, the Third Circuit said that there wasn't a standing problem; that he could challenge these provisions of the state constitution even without himself filling out an application first because standing shouldn't require people to go through useless exercises in form.


There was some pushback on that idea from the U.S. Supreme Court today, though, at least certain justices that are usually identified as conservative. Chief Justice Roberts started off the questioning and he focused on the standing question. A couple other justices also asked about standing issues.


If the Court were to reach the First Amendment issues here, it would have to explain why it was okay for this person, Mr. Adams, to raise this claim given that his status as an independent didn't exclude him from consideration since if he didn't fill out an application, he wouldn’t have been considered anyway. The natural response to that is one that the Third Circuit bought, and that Justice Kagan referenced in the oral argument today, is that we don't require people to go through futile gestures.


On the merits -- before I get to the merits, a couple other things on the standing point. Michael McConnell, former judge on the Tenth Circuit and law professor extraordinaire, argued in favor of upholding the Delaware provision, and he said that without Adams having more concrete plans to apply for a judicial office, that simply saying that "If I were eligible, I would consider, and maybe I'd fill out an application for a future judgeship" isn't enough, under the Court's controlling precedent, the major case being Lujan v. Defenders of Wildlife.


It's not enough under that provision to provide injury in fact. He would have to say, "I would apply for X job if I were eligible for it." That would give him standing, but simply saying that "If there's an opening and I were eligible, I'd consider and maybe I'd apply" isn't concrete enough.


McConnell also suggested that Mr. Adams may not have been being sincere in challenging this provision; that Adams might really be interested just in making a point and being a litigant to gets his case heard by the Supreme Court rather than actually applying for this judgeship because he's had an opportunity to apply for other judgeships.


There are some courts in Delaware that don't require this partisan balance, or that at least don't exclude independents, and, until now, he has not applied for them. So, there's some suggestion that he was doing this just to make a case and not because he really felt himself to be injured.


But the case below was held in his favor, and so whatever factual questions were taken up with what Adams' genuine intention were would presumably have been resolved against the state and in favor of Adams.


Now, on to the merits. Adams' claim rests on the three big patronage cases: Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois. All of those three cases protect certain government employees against patronage-based discipline.


But because party affiliation is obviously important for some government jobs—secretary of state, for example, or some other government agency, or even speech writer in the mayor's office—the court has to draw a line between the positions for which patronage is an acceptable employment qualification and the positions for which the First Amendment would protect an employee's ability to affiliate with the party of his choosing and not be disciplined for being a member of the "wrong" political party.


In Elrod, the first of these cases in 1976, the court initially suggested that policymaking employees could be chosen on the basis of party affiliation, but people who simply implemented policy that was made by others would be protected from party-based discipline.


In the second case, however, Branti, the Court revised the test and said that party affiliation could be used only where partisanship was an "appropriate requirement for the effective performance of the public office involved." So, instead of asking whether there was a policymaking job, we say, "Well, is party membership an appropriate requirement?"


For example, ensuring that the Federal Election Commission is balanced by party—if you have not more than three members of any given party on the Federal Election Commission—that achieving that partisan balance makes party affiliation an appropriate requirement for selecting commissioners.


But, as the example in the case was, a university's football coach may not be chosen on the basis of party affiliation even though he does, in a sense, make certain kind of policy. He might be a policymaker in some regard, but he is not to be chosen on the basis of party affiliation because partisanship is not an appropriate requirement for the effective performance of his job as a football coach.


The court of appeals in this case, as I noted, concluded that partisan affiliation is not appropriate to consider in the selection of a judge because judges make policy, or when they make policy, they don't do so based on the partisan goals of the party in power.


This conclusion, I believe, is quite suspect. I think the decision is wrong on those kind of terms. I think that the courts do make policy. They unquestionably have a policy impact. Their decisions have a policy impact. And while it is true, as the Third Circuit said, their job is not to implement one party's vision of society or one party's policy prescriptions, it's not at all clear that that's the only reason for considering party affiliation. It's one of the reasons.


In the early patronage cases, the Court drew this distinction based on high-level executive officials and low-level executive officials and said you can consider party for the high-level officials but not for the low-level ones because they thought, "Well, what do these low-level employees do? They just implement policy made by others, and so you don't need a government office that is staffed top to bottom with Republicans to make sure that the office carries out a Republican agenda." Instead, you just need the policymakers in the office to be Republicans and then just select the rest without regard to party affiliation.


Well, that's one reason why we might protect certain low-level employees from a partisan-based requirement. But there is a second reason. The desirability of the partisan balance on high-level policymaking bodies gives a second reason for considering party affiliation, and I think that the Supreme Court of the United States is going to agree with this critique.


As we see with the Federal Election Commission example that I just gave you, that the government might be permitted to consider partisan affiliation when choosing those officials in certain instances, and I think that the Court is more likely to agree with the test that's formulated by the Seventh Circuit in disagreeing with the Third.


The Seventh Circuit said it's okay to consider partisan affiliation when you're choosing officials, and this is the quote, "whose work is politically sensitive and who exercise significant discretion in the performance of their duties."


So the test, as the Seventh Circuit phrased it, is less one of whether your job is focused on implementing a certain policy agenda and more on what discretion you have. If your job in the governmental agency is more or less purely administrative in the ministerial sense—if you don't have discretion—then we can treat you as a civil servant. We can protect you from discipline on the basis of your party affiliation.


On the other hand, if you are exercising significant amounts of discretion, then your party affiliation is going to be relevant, and we can choose people based, in part, on belonging to the "right" party.


Where does this leave Mr. Adams and his case? I think that because of that, because of what I've just explained, I don't think that he's going to win on the basis of his broad argument. I don't think the Third Circuit is simply going to be affirmed and that the Supreme Court's going to agree with everything the Third Circuit says.


I think the Court is going to indicate that the bare majority requirement—the requirement that one party not have anything more than a bare majority on the courts—is constitutional. If I'm going to give a prediction, that's my prediction.


However, Adams does have a fairly strong argument that the major party requirement is unconstitutional. That completely categorically excluding people from consideration because they don't belong to either the Republican or the Democratic party might be unconstitutional.


Now, it's fairly common for laws to require agencies to have no more than a bare majority of members from one political party. They've cited historical examples. It's fairly common, currently, to have a version of this bare majority requirement.


But it is very rare—in fact, counsel today admitted that it was an innovation when Delaware came up with this—it's very rare for laws to require that all appointees be either Democrats or Republicans. So why would the state do that? Why would the state add this major party requirement in addition to the bare majority requirement?


The reason is that Delaware wanted it to be kind of hard to get around the bare majority requirement by appointing someone who was, at least on paper, an independent or a member of a minor party but whose sympathies were with the majority party on the court.


So here's the example. Suppose that the Delaware Supreme Court -- again, made up of a total of five justices. Suppose that there are three members of the Democratic party who are already on there, and there's one Republican and one vacancy, so the governor has to choose someone to fill that vacancy.


If he chooses a Democrat, then he will violate the bare majority rule because the bare majority is three out of five; he'd be choosing a fourth. That would violate the bare majority rule.


Suppose that he doesn't want to pick a Republican because he's a Democrat. He wants the Democrats to be in control of the court, and he can't choose a Democrat, but he doesn't want to choose a Republican; he doesn't want to choose a conservative.


Maybe he'll choose a Democratically leaning independent. Somebody like Mr. Adams himself who is more liberal than a typical Democrat. If he does that, then he's going to solidify the liberal control of the court just as easily—maybe even more easily or assuredly, more solvedly—than if he had chosen a fourth Democrat. Because if he's successful, he'll have three Democrats, a kind of super Democrat but not in name—he'll have a socialist-leaning independent—and then he'll have the one dissenting Republican.


The control, then, of the court would be overwhelmingly in favor of liberal interests even if he was, on paper, prohibited from having any more than three members of the Democratic party on the court at the time.


So that's why Judge McConnell and others who defend the Delaware system say, "We can't simply enforce the bare majority requirement. We have to add this major party requirement because it would be too easy to subvert the whole purpose of the provision if we were to allow the appointments of independents or third-party members."


Now, the response to that is, number one, "Well, that's still too much of a limitation on the First Amendment rights of people just to categorically exclude them, everybody, who doesn't want to be a member of the Republican or Democratic parties. That's too much of an interference with their First Amendment rights."


The second response is that even if you implement the policy as it is now, then you're not guaranteeing an ideological balance on the court. That a Democratic governor who has to fill a Republican seat can choose a liberal Republican or somebody who is a liberal who's at least willing to affiliate with the Republican party and choose that person so that you get a liberal majority on the court even if the partisan affiliations appear to be balanced.


Another argument here that might make it a little bit difficult for Mr. Adams to succeed on this claim was brought out by several of the justices, including Justice Kavanaugh who said, "Can we really claim that members of these third parties or independents have a constitutional right to be considered for judgeships given that the appointing authorities very often don't consider anybody who is outside their own parties?" That is, if you have—in most states and in the federal government, when the executive is choosing someone for a judgeship, even if there's some consideration given to members of the other party, that's few and far between.


In the vast majority of cases, a Republican governor will choose Republicans to fill judgeships; a Democratic governor will choose Democrats to fill judgeships, and that's just the way that it works. So, practically, if not formally, people who want judgeships but are not members of the governor's party don't have much of a chance.


All that the Delaware Constitution does is formalize that system and says that you're going to have to belong to the "right" party to be considered for a judgeship.


Mr. Adams, in his case, his counsel stressed that there is a difference between a governor choosing to give some weight to party membership and a constitutional provision that categorically excludes members of other parties from eligibility to serve in judgeships. But the Court's going to have to decide whether that's a meaningful difference.


Where we are. The Court's not going to decide the case for a few months, but I would be quite surprised if the Third Circuit were affirmed in its entirety; if the Court said that partisan considerations, basically always, are unconstitutional and impose too much of an infringement on would-be judges' First Amendment rights.


But I would not be surprised at all if the Court were to say that the major party requirement is unconstitutional while the bare majority requirement is constitutional.


With that, Greg, I think I'll stop and take whatever questions the audience has.


Greg Walsh:  Perfect. Let's go to audience questions.


Gregory Dolin:  Good afternoon. This is Gregory Dolin from University of Baltimore. I have two questions. If that takes too much time, feel free to answer either one of them. I suppose they're somewhat diametrically opposed to each other.


The first one is kind of picking up where you left off in Justice Kavanaugh's question; this idea that the Delaware Constitution merely formalizes what is already being done, just even political realities.


Why isn't the reverse true as well in the sense that Delaware's professed need for this provision is that they want their courts to be balance and that they want their justice to be administered equally as well as they want to protect their reputation for this non-really partisan judiciary especially when it comes to corporate law, etc.


Why don't they answer that? If that's true, then nothing is stopping the governor, in excess of his own judgement, of picking the judges to accomplish that goal? It's not in the constitution saying you must appoint this person or that person.


So, in other words, kind of flipping Justice Kavanaugh's question on its head, why does the state actually need this provision if they can achieve its goal basically just by exercising of judgement?


The second question, like I said, is somewhat perhaps taking the exact opposite of this position or this concern. Given the reality of modern politics and that, perhaps, the low-level functions are not so low level and not merely functionaries. When we have -- over the last four years we've seen some career service people in various departments trying to actively, if not countermand, but at least resist or slow down the directions of the political and policymaking bosses.


Given that reality, or at least perceived reality, can a decision like Rutan actually survive? Can we actually continue to make this differentiation between policy and non-policymaking people, especially, as Justice Thomas pointed out in one of his questions, that did not seem to be the original approach where it was a winner-take-all system?


With that, I think I'll just stop.


Michael Dimino:  Thank you, Greg. I'll respond to both of them. I think they're very good questions.


The first question of sort of why not just leave it to the governor? I think the answer to that is—if I can refer to part of the language that McConnell used in today's argument—that this provision in the Delaware Constitution is really a separation of powers provision.


      It's a constraint on the governor's appointment power, and the reason why we can't just leave it to the governor is because it's not in the governor's political interest to do anything other than serve his own political interest in the short term. Or at least, we can't depend on political officials to act in the long-term interests of the community. That's why we have constitutional provisions.


      The reason why we have a Constitution is to lock the particular governing officials, the temporary custodians of the people's rights and responsibilities, we lock them into certain policies for the greater good in the long term because we can't trust them, in the absence of a constitutional provision, to do that. We think that they're going to act in their short-term interest or their own party's interest or their own personal interest if they're not constrained by a constitutional provision.


      So I think that's the reason here why we can't depend on governors to do that is because Democratic governors are going to say, "Well, for the good of the country, I'm going to appoint Democrats." And, then, Republicans are going to get in and do the opposite.


Or, given that Delaware isn't really competitive—you might have Democrats and more Democrats and more Democrats—and so you might get out of whack and no governor is going to feel all that much of an incentive to create a balance if that means giving up power for his own party.


      The second question is the original meaning kind of requirement. These patronage cases have always been controversial. Even when they were decided, we had people who were considered sort of moderates on the Court. People like Justice Powell, for example, would express disagreement with Justice Brennan's expansion of the First Amendment to protect government officials from partisan-based discipline.


      It seems right. Justice Scalia wrote a very powerful dissent in the Rutan case in 1990 suggesting that this line of cases was wrong and at least shouldn't be expanded. Now that the Court has become more conservative and more originalist than it was over the course of the last 30 years, it's certainly possible that there would be a call on the Court—I would expect it from Justice Thomas—to reevaluate this whole line and to say that Adams loses regardless of whether he can make out a case under Elrod, Branti, and Rutan because Elrod, Branti, and Rutan are wrong.


      I don't think a majority of the Court is going to agree with that. Even though these cases are old, I don't know that they're ripe for being overruled. But they're controversial enough that they might not be applied quite as vigorously as they might otherwise would. I would think that the conservatives on the Court would be loath to expand them.


      They might go far enough to say that you can't simply exclude independents from judgeships entirely, but I don't think that they're going to read those precedents quite as expansively as the Third Circuit did.


Greg Walsh:  We have one caller in the queue, so let's go to them.


Bob Fitzpatrick:  Hi. Bob Fitzpatrick in D.C. Two quick questions. On the standing issue, was there any discussion of the Supreme Court's decision in, I think it was about 1977, in the Teamsters case, which I think is the only time they've ever talked about futile exercise.


      My second question is was there any sentiment expressed by any of the justices, maybe Justice Thomas, that maybe the Court just shouldn't be in this area at all because any decision they make -- that term "appropriate" on the Branti case. You can pour any wine into that bottle you want to and it seems to me that any direction they go into is somehow political.


      So I guess my question is was there any sentiment expressed of maybe we just shouldn't be involved in this at all?


Michael Dimino:  Thank you, Bob. I'll take the second part first because that follows from the last question, and the answer is not much. Justice Thomas did say something that might indicate some skepticism about this line of cases, but for the vast majority of the argument today, those cases were treated as the law, and the question was how to interpret them and how to apply them rather than whether the Court should be in this area at all.


      I do, however, agree with you about the vagueness of the test. That however vague the policymaker question was from Elrod, at least you could talk in understandable terms about who a policymaker was and who it wasn't, and what kinds of policies could be made, and what we were talking about when we used that term.


      Here, the question of whether partisanship is an appropriate requirement is almost just circular. It's almost completely vacuous; that it's appropriate if we say it is, and it's not if we don't. Now, it's a little bit better than that because the Court doesn't simply leave it at appropriate requirement. It doesn't say, "Well, partisanship is okay if it's appropriate and not if it isn't." It says it's permissible for the government to consider partisanship if partisanship is an appropriate requirement for the effective performance of the job.


      So that's the only thing that's really constraining or gives some sort of direction as to how that term should be interpreted by future courts.


      Here, what the Third Circuit did is it said that partisanship is not an appropriate requirement for the effective performance as a judge. You don't do your job better or worse depending on what your partisan affiliation is. So that's why it concluded that partisanship was not appropriate in this case.


      As I said, I think that the Court is not going to go that far. I think that the partisan balance itself -- the Court's going to see the partisan balance itself as a sufficiently requirement to justify states in considering partisan affiliation.


      Now, as to your other question about the standing. I don't recall in the oral argument anybody mentioning the Teamsters case by name, but the futility doctrine, as you might call it, did certainly lead to discussion.


      Justice Kagan was probably the most explicit in considering that issue and saying that, "Well, of course. We wouldn't expect someone to apply for a job when the constitutional rule says explicitly that he's not allowed to get it."


      Others, however, took up the idea and said, "Maybe this guy, Adams, is just sort of playing around with us. He says he wants a judgeship. He says, really, he wants any kind of a judgeship, but he hasn't applied for any of the judgeships that he is authorized to get." Not every judgeship must go to Republicans or Democrats.


      He could, for example, join the family court or the court of common pleas and be an independent. But he hasn't applied for any of those judgeships. Justice Breyer made some reference in one of his questions. He said he had his clerk try to find how many judgeships this guy was eligible for, and he found a whole bunch of vacancies that Adams could have applied for but didn't.


      So there was some suggestion that perhaps Adams should not have standing because he's not really serious about pursuing a judgeship; he just wants to make a Supreme Court case.


      The Teamsters case in particular, which is the question you asked. Was there discussion of that? I don't recall any discussion of the case itself. Most of the discussion of standing cases centered on Lujan v. Defenders of Wildlife and, to a lesser extent, Friends of the Earth v. Laidlaw, which was a Justice Ginsburg decision some years after Lujan that cut back on the Lujan doctrine and was a little freer in allowing people to get into court.


Greg Walsh:  Well, professor, we don't have any callers in the queue. Do you have any final thoughts that you want to conclude with?


Michael Dimino:  Only to thank you for organizing and moderating the call and to thank the callers for their listening and their participation and to thank The Federalist Society for hosting it. It's my pleasure to be able to participate in teleforums and other kinds of events like this, so thank you all for your time and your interest and your attention.


Greg Walsh:  Perfect. On behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at


      Thank you all for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at