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SUPREME COURT OF THE UNITED STATES
_________________
No. 19–309
_________________
JOHN C. CARNEY, GOVERNOR OF DELAWARE,
PETITIONER
v. JAMES R. ADAMS
on writ of certiorari to the united states
court of appeals for the third circuit
[December 10, 2020]
Justice Breyer delivered the opinion of the
Court.
This case concerns a Delaware constitutional
provision that requires that appointments to Delaware’s major
courts reflect a partisan balance. Delaware’s Constitution states
that no more than a bare majority of members of any of its five
major courts may belong to any one political party. Art. IV, §3. It
also requires, with respect to three of those courts, that the
remaining members belong to “the other major political party.”
Ibid.
The plaintiff, a Delaware lawyer, brought this
lawsuit in federal court. He claimed that Delaware’s
party-membership requirements for its judiciary violate the Federal
Constitution. We agreed to consider the constitutional question,
but only if the plaintiff has standing to raise that question. We
now hold that he does not.
I
The Delaware Constitution contains a political
balance requirement applicable to membership on all five of its
courts: the Supreme Court, the Chancery Court, the Superior Court,
the Family Court, and the Court of Common Pleas. The provision says
that no more than a bare majority of judges on any of these courts
“shall be of the same political party.”
Ibid. (We shall call
this requirement the “bare majority” requirement.) The Delaware
Constitution also contains a second requirement applicable only to
the Supreme Court, the Chancery Court, and the Superior Court. It
says that the remaining members of those three courts (those not in
the bare majority) “shall be of the other major political party.”
Ibid. (We shall call this the “major party” requirement.)
Thus, all five courts are subject to the “bare majority”
requirement, and three of the five courts are additionally subject
to the “major party” requirement.
On February 21, 2017, plaintiff-respondent James
R. Adams sued Delaware’s Governor, John Carney, in Federal District
Court. Adams, then a newly registered political independent,
claimed that both of Delaware’s political balance requirements
violated his First Amendment right to freedom of association by
making him ineligible to become a judge unless he rejoined a major
political party.
Governor Carney moved to dismiss for lack of
standing, and Adams filed an amended complaint in an attempt to
rectify the problem. App. 1–2, 17–18. After discovery largely
centered on Adams’ history and intentions in seeking a judgeship,
the parties cross-moved for summary judgment. Governor Carney
argued (1) that Adams lacked standing to assert his constitutional
claim, and (2) that, in any event, the requirements were
constitutional. Adams argued only that he was entitled to summary
judgment on the merits because the political balance requirements
made independents like him ineligible for a judgeship.
The District Court denied Governor Carney’s
summary judgment motion.
Id., at 165; App. to Pet. for Cert.
83a. It held that Adams had standing to challenge both the “major
party” requirement for membership on the Supreme Court, the
Chancery Court, and the Superior Court and the “bare majority”
requirement for membership on the Family Court and the Court of
Common Pleas. App. 173–175; App. to Pet. for Cert. 70a–72a. It then
granted summary judgment to Adams on the merits, App. 165; App. to
Pet. for Cert. 83a, holding that Delaware’s balancing scheme as a
whole was unconstitutional, App. 175–181; App. to Pet. for Cert.
75a–81a.
Governor Carney appealed to the United States
Court of Appeals for the Third Circuit. The appellate court
affirmed in part and reversed in part.
Adams v.
Governor
of Del., 922 F.3d 166 (2019). Like the District Court, it held
that Adams had standing to challenge the major party requirement,
id., at 175, but unlike the District Court, it held that
Adams did not have standing to challenge the bare majority
requirement (in any of the five courts),
id., at 174–175.
The court held that the bare majority requirement itself does not
preclude independents from eligibility for any vacancy.
Ibid.
The court then focused on the major party
requirement, which applies only to three of the five courts. Did
that constitutional provision bar independent voters from becoming
judges on those courts? If so, was that bar constitutional? If not,
was that provision severable from the rest of the Delaware
Constitution’s political balance provisions, in particular, from
the bare majority requirement as applied to the Supreme Court, the
Chancery Court, and the Superior Court?
The Third Circuit concluded that the major party
requirement categorically excludes independents and members of
third parties from becoming judges on the Supreme Court, the
Chancery Court, and the Superior Court. 922 F. 3d, at 182–183.
It held that the major party requirement consequently violates the
Federal Constitution’s First Amendment.
Ibid. And it held
that the major party requirement is not severable from the bare
majority requirement.
Id., at 183–184. The Circuit concluded
that both requirements (as applied to those three courts) are
invalid.
Ibid.
Governor Carney then filed a petition for a writ
of certiorari. He asked us to consider, first, whether the major
party requirement is constitutional and, then, if it is not,
whether it is severable from the bare majority requirement. Pet.
for Cert. i. We granted his petition but asked that the parties
first address the question whether Adams has demonstrated Article
III standing to bring this lawsuit.
II
A
This case begins and ends with standing. The
Constitution grants Article III courts the power to decide “Cases”
or “Controversies.” Art. III, §2. We have long understood that
constitutional phrase to require that a case embody a genuine, live
dispute between adverse parties, thereby preventing the federal
courts from issuing advisory opinions. See
Flast v.
Cohen,
392 U.S.
83, 96–97 (1968);
Coleman v.
Miller,
307 U.S.
433, 460 (1939) (opinion of Frankfurter, J.) (“[I]t was not for
courts to pass upon . . . abstract, intellectual problems
but only if a concrete, living contest between adversaries called
for the arbitrament of law”). The doctrine of standing implements
this requirement by insisting that a litigant “prove that he has
suffered a concrete and particularized injury that is fairly
traceable to the challenged conduct, and is likely to be redressed
by a favorable judicial decision.”
Hollingsworth v.
Perry,
570 U.S.
693, 704 (2013);
Lujan v.
Defenders of Wildlife,
504 U.S.
555, 560–561 (1992).
Two aspects of standing doctrine are relevant
here. First, standing requires an “ ‘injury in fact’ ”
that must be “concrete and particularized,” as well as
“ ‘actual or imminent.’ ”
Id., at 560. It cannot
be “ ‘ “conjectural or hypothetical.” ’ ”
Ibid. Second, a grievance that amounts to nothing more than
an abstract and generalized harm to a citizen’s interest in the
proper application of the law does not count as an “injury in
fact.” And it consequently does not show standing.
Hollingsworth, supra, at 706; see also
Lance v.
Coffman,
549 U.S.
437, 439–441 (2007) (
per curiam) (describing this
Court’s “lengthy pedigree” in refusing to serve as a forum for
generalized grievances).
In other words, a plaintiff cannot establish
standing by asserting an abstract “general interest common to all
members of the public,”
id., at 440, “no matter how sincere”
or “deeply committed” a plaintiff is to vindicating that general
interest on behalf of the public,
Hollingsworth, supra, at
706–707. Justice Powell explained the reasons for this limitation.
He found it “inescapable” that to find standing based upon that
kind of interest “would significantly alter the allocation of power
at the national level, with a shift away from a democratic form of
government.”
United States v.
Richardson,
418 U.S.
166, 188 (1974) (concurring opinion). He added that “[w]e
should be ever mindful of the contradictions that would arise if a
democracy were to permit general oversight of the elected branches
of government by a nonrepresentative, and in large measure
insulated, judicial branch.”
Ibid.; see also
Schlesinger v.
Reservists Comm. to Stop the War,
418 U.S.
208, 222 (1974);
Warth v.
Seldin,
422 U.S.
490, 500 (1975). Cf.
Federal Election Comm’n v.
Akins,
524 U.S.
11, 21–25 (1998) (finding standing where a group of voters
suffered
concrete, though widespread, harm when they were
prevented from accessing publicly disclosable voting-related
material).
B
We here must ask whether Adams established
that, at the time he filed suit, Delaware’s major party provision
caused him a concrete, particularized “injury in fact” over and
above the abstract generalized grievance suffered by all citizens
of Delaware who (if Adams is right) must live in a State subject to
an unconstitutional judicial selection criterion. We have examined
the record that was before the District Court at summary judgment,
keeping in mind that Adams bears the burden of establishing
standing as of the time he brought this lawsuit and maintaining it
thereafter.
Lujan, supra, at 561 (plaintiff bears the burden
of proving standing);
Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc.,
528 U.S.
167, 191 (2000) (standing is assessed “at the time the action
commences”);
id., at 189 (“ ‘The requisite personal
interest that must exist at the commencement of the litigation
. . . must continue throughout its existence’ ”);
see also
Lujan, supra, at 569, n. 4. And we conclude
that Adams did not show the necessary “injury in fact.”
Adams suffered a “generalized grievance” of the
kind we have just described. He, like all citizens of Delaware,
must live and work within a State that (in his view) imposes
unconstitutional requirements for eligibility on three of its
courts. Lawyers, such as Adams, may feel sincerely and strongly
that Delaware’s laws should comply with the Federal Constitution.
Accord,
Hollingsworth, 570 U. S.
, at 706. But
that kind of interest does not create standing. Rather, the
question is whether Adams will suffer a “ ‘personal and
individual’ ” injury beyond this generalized grievance—an
injury that is concrete, particularized, and imminent rather than
“conjectural or hypothetical.”
Id., at 705–706.
Adams says he has. He claims that Delaware’s
major party requirement in fact prevents him, a political
independent, from having his judicial application considered for
three of Delaware’s courts. To prove this kind of harm, however,
Adams must at least show that he is likely to apply to become a
judge in the reasonably foreseeable future if Delaware did not bar
him because of political affiliation. And our cases make clear that
he can show this only if he is “ ‘able and ready’ ” to
apply. See
Gratz v.
Bollinger,
539 U.S.
244, 262 (2003);
Northeastern Fla. Chapter, Associated Gen.
Contractors of America v.
Jacksonville,
508 U.S.
656, 666 (1993). We have examined the summary judgment record
to determine whether Adams made this showing. And, as we have said,
we conclude that he has not.
The only evidence supporting Adams is two
statements he made in his deposition and in his answer to
interrogatories that he wants to be, and would apply to be, a judge
on any of Delaware’s five courts. 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 . . . [o]n any of the
courts. I would feel less comfortable on Chancery than any other
court. I would feel most comfortable on Superior Court, Family
Court, Court of Common Pleas, state Supreme Court based on my
background, experience, and what I have done in my career.” App.
34.
He added in his answer to interrogatories:
“Adams . . . would seriously
consider and apply for any judicial position for which he feels he
is qualified. . . . Adams believes that he meets the
minimum qualifications to apply for any judicial officer position.”
Id., at 62–63.
Those statements, however, must be considered in
the context of the record, which contains evidence showing that, at
the time he brought this lawsuit, Adams was not “able and ready” to
apply.
First, the record showed that, between 2012 and
2016, during which time Adams was a practicing lawyer and a
registered Democrat, Delaware’s five courts had a combined total of
14 openings for which Adams, then a Democrat, would have been
eligible.
Id., at 51–56, 144–164. Yet he did not apply for
any of them. When deposed during discovery, Adams said that in 2014
he had wanted to apply for a Supreme Court or Superior Court
judgeship.
Id., at 35, 43–46, 62. Adams said that he could
not do so because only Republicans were eligible for those
positions that year.
Ibid. He was wrong about that. In
particular, there were three vacancies on those two courts in 2014
for which he, as a Democrat, was eligible.
Id., at 51–54.
Adams later conceded that he had indeed been eligible to apply for
those vacancies, but he had not done so.
Id., at 43–46.
Second, on December 31, 2015, after roughly 12
years as a lawyer for the Delaware Department of Justice, Adams
retired.
Id., at 32, 58. In February 2016, Adams changed his
bar membership from “Active” to “Emeritus” status.
Id., at
61. He then returned to “Active” status in January 2017.
Ibid. In his deposition, he stated that at about that same
time in the “[b]eginning of the year, January/February,” he read a
law review article arguing that Delaware’s judicial eligibility
requirements were unconstitutional because they excluded
independents.
Id., at 38; see Friedlander, Is Delaware’s
“Other Major Political Party” Really Entitled to Half of Delaware’s
Judiciary? 58 Ariz. L. Rev. 1139 (2016). Adams called the
article’s author and said, “ ‘I just read your Law Review
. . . article. I’d like to pursue this.’ ” App. 38.
The author suggested several attorneys who might handle the matter.
Ibid.
Third, shortly thereafter, on February 13, 2017,
Adams changed his political affiliation from Democrat to
unaffiliated independent.
Id., at 67. Before that, he had
been a Democrat his “whole life” and actively involved in the
Delaware Democratic Party.
Id., at 41. Leaving the party
made it less likely that he would become a judge. But doing so made
it possible for him to vindicate his view of the law as set forth
in the article.
Fourth, after Adams became a political
independent on February 13, 2017, he filed this lawsuit eight days
later on February 21.
Id., at 1.
Fifth, Adams said in his answer to
interrogatories that he “has no knowledge of what judicial
positions may become open in the next year.”
Id., at 62.
Sixth, other than the act of filing the lawsuit
itself, the summary judgment record contains no evidence of
conversations or other actions taken by Adams suggesting that he
was “able and ready” to apply for a judgeship.
During his deposition, Adams provided
explanations for this negative evidence. He said that his failure
to apply for available judgeships at the time when he was eligible
reflected his lack of interest in being a judge at that time. He
was then content to work at the Department of Justice.
Id.,
at 35; Brief for Respondent 17–18. Adams added that his return from
retirement to “Active” bar membership in 2017 showed that he
decided on becoming a judge later in life and after a change in
administration at the Delaware Department of Justice. App. 33.
(Adams did not explain his failure to apply in 2014, though, when,
he said, he
was interested in a judgeship.) Adams further
explained that his contemporaneous change of political affiliation
was because he “tend[s] to be much more progressive and liberal
than [D]emocrats in Delaware.”
Id., at 41. Although he had
been a lifelong Democrat, and actively involved with the Delaware
Democratic Party, he said then that he “probably consider[s]”
himself “more of a Bernie [Sanders] independent.”
Id., at
42. Finally, in Adams’ view, the lack of other evidence proves
little or nothing about his intentions.
C
This is a highly fact-specific case. In our
view, three considerations, taken together, convince us that the
record evidence fails to show that, at the time he commenced the
lawsuit, Adams was “able and ready” to apply for a judgeship in the
reasonably foreseeable future. First, as we have just laid out,
Adams’ words “I would apply . . . ” stand alone without
any actual past injury, without reference to an anticipated
timeframe, without prior judgeship applications, without prior
relevant conversations, without efforts to determine likely
openings, without other preparations or investigations, and without
any other supporting evidence.
Second, the context offers Adams no support. It
suggests an abstract, generalized grievance, not an actual desire
to become a judge. Indeed, Adams’ failure to apply previously when
he was eligible, his reading of the law review article, his change
of party affiliation, and his swift subsequent filing of the
complaint show a desire to vindicate his view of the law, as
articulated in the article he read.
Third, if we were to hold that Adams’ few words
of general intent—without more and against all contrary
evidence—were sufficient here to show an “injury in fact,” we would
significantly weaken the longstanding legal doctrine preventing
this Court from providing advisory opinions at the request of one
who, without other concrete injury, believes that the government is
not following the law. Adams did not show that he was “able and
ready” to apply for a vacancy in the reasonably imminent future.
Adams has not sufficiently differentiated himself from a general
population of individuals affected in the abstract by the legal
provision he attacks. We do not decide whether a statement of
intent alone under other circumstances could be enough to show
standing. But we are satisfied that Adams’ words alone are not
enough here when placed in the context of this particular
record.
Precedent supports the conclusion that an injury
in fact requires an intent that is concrete. In
Lujan, for
example, organizations dedicated to wildlife conservation sought to
enjoin enforcement of a federal regulation that they believed would
unlawfully harm endangered species.
Lujan, 504 U. S.,
at 563–564. The organizations’ members had previously visited the
species’ habitats abroad, and they said that they intended to
return to those foreign habitats in the future.
Ibid. This
Court recognized that having to view a species-impoverished habitat
could constitute a cognizable injury.
Id., at 562–563. But
it pointed out that the plaintiffs had not described any concrete
plans to visit those habitats, nor had they said when they would do
so.
Id., at 563–564. The Court said that the organizations
had set forth only “ ‘some day’ intentions.”
Id., at
564. And “some day intentions” do “not support a finding of the
‘actual or imminent’ injury that our cases require.”
Ibid.
For another thing, arguably similar cases in
which this Court has found standing all contained more evidence
that the plaintiff was “able and ready” than Adams has provided
here. In
Adarand Constructors, Inc. v.
Peña,
515 U.S.
200 (1995)
, for example, a subcontractor challenging a
race-based program for allocating contracts established standing by
showing that it “bids on every guardrail project in Colorado,” that
the defendant “is likely to let contracts involving guardrail work
. . . at least once per year in Colorado,” and that the
plaintiff “is very likely to bid on each such contract.”
Id., at 212.
In
Associated Gen. Contractors, 508
U. S., at 666, the Court held that an association of
contractors had standing to attack as unlawful a race-based
set-aside program for awarding contracts. The contractors showed
that they were “able and ready to bid on [future] contracts,” for
it was undisputed that they had “regularly bid on construction
contracts in Jacksonville, and that they would have bid on
contracts set aside pursuant to the city’s ordinance were they so
able.”
Id., at 666, 668. The Court noted that it “must
assume that [these allegations] are true” because they were not
challenged in any way.
Id., at 668–669.
In
Gratz, 539 U. S., at 262
,
we held that a plaintiff had standing to attack as unlawful a
university’s affirmative action admissions policy. The plaintiff
had applied for admission to the university as a freshman applicant
in the recent past and been rejected.
Ibid. He said he
intended to apply to transfer to the university in the near future,
should the university cease using affirmative action in its
transfer admissions process.
Ibid. And the university had a
“rolling” transfer program open for application each year, so there
was no doubt that the plaintiff ’s injury was imminent.
Id., at 256. The Court therefore concluded that he was
“ ‘able and ready’ ” to apply as a transfer student.
Id., at 262. Unlike Adams, none of these plaintiffs relied
on a bare statement of intent alone against the context of a record
that shows nothing more than an abstract generalized grievance.
Rather, each introduced at least some evidence that,
e.g.,
they had applied in the past, there were regular opportunities
available with relevant frequency, and they were “able and ready”
to apply for them.
By way of contrast, our precedents have also
said that a plaintiff need not “translat[e ]” his or her
“desire for a job . . . into a formal application” where
that application would be merely a “futile gesture.”
Teamsters v.
United States,
431
U.S. 324, 365–366 (1977); see also
Sporhase v.
Nebraska ex rel. Douglas,
458 U.S.
941, 944, n. 2 (1982). And we have said that an “aggrieved
party ‘need not allege that he would have obtained the benefit but
for the [unlawful] barrier in order to establish standing.’ ”
Adarand Constructors, supra, at 211; see also
Gratz,
supra, at 262;
Associated Gen. Contractors, supra, at
666. We do not here depart from or modify these or any other of the
precedents to which we have referred.
Rather, our holding follows from a
straightforward application of precedent to the particular summary
judgment record before us. And, as we have explained, in the
context set forth by the evidence, Adams has not shown that he was
“able and ready” to apply in the imminent future. Consequently, he
has failed to show that “personal,” “concrete,” and “imminent”
injury upon which our standing precedents insist.
For these reasons, we reverse the Third
Circuit’s decision in respect to standing, vacate the judgment, and
remand with instructions to dismiss the case.
It is so ordered.
Justice Barrett took no part in the
consideration or decision of this case.
