Is Delaware’s “Other Major Political Party” Really Entitled to Half of Delaware’s Judiciary?

Delaware has long been unique in its means of selecting judges. Before the Constitutional Convention of 1897, Delaware’s governor possessed the unilateral power to appoint judges with life tenure. Ever since, Delaware has limited the number of judges registered with a single political party. A bipartisan bargain implemented in 1951 amended the Delaware Constitution in a manner that created the current system, by which every member of the Delaware Supreme Court, Court of Chancery, and Superior Court must belong to one of the two major political parties, with each party entitled to half of the judgeships.

Over the past several decades, the U.S. Supreme Court has developed a body of First Amendment case law bearing on political party affiliation. This Essay is the first to discuss the pertinence of First Amendment precedent to Delaware’s judicial-selection system. I conclude that various lines of First Amendment cases cast great doubt on the constitutionality of categorically disqualifying Independents and members of minor parties from judgeships on Delaware’s major commercial courts.