USLegal Blog

To allow, or to forbid, a judge’s judging a case when one litigant has pumped millions of dollars into the judge’s election campaign. How best to preserve Americans’ faith in the integrity and fairness of our judicial system? The U.S. Supreme Court faced just this question in Caperton v. Massey, a suit between rival West Virginia coal companies. The closely divided Court issued its decision earlier this month. The three opinions totaling just 40 pages are a breeze to read compared to the Supremes’ more lengthy screeds - if you’ve never read a Supreme Court opinion, try this one.

Caperton’s coal company had sued the Massey coal co. for many misdeeds, winning a $50 million jury verdict. Massey appealed. Prior to the appeal’s hearing date, however, the West Virginia Supreme Court of Appeals had an election. Massey’s CEO Don Blankenship poured over $3 million (almost 3/4 the total spent) into the campaign of Brent Benjamin, who managed to unseat his incumbent opponent in a close election.

When the appeal of the $50 million verdict came before newly-minted Justice Benjamin, he refused to recuse himself - despite Caperton’s stringent objections that he was biased, or appeared to be, due to Blankenship’s huge contribution to his election. Benjamin said he had no direct pecuniary (monetary) interest in the outcome of the case, and there had been no objective information offered to show he had a bias or had prejudged the outcome. Ultimately, in the court’s 3-2 decision for reversal of the damage award, Benjamin voted to reverse.

Caperton appealed this reversal (and Benjamin’s failure to recuse himself) to the U.S. Supreme Court on the Constitutional question of whether Benjamin’s refusal to step aside violated Caperton’s Fourteenth Amendment right to Due Process (procedural fairness). And how could it not? The outcome reeks of unfairness, does it not? It appears unfair, or that there is a risk of unfairness afoot since we cannot know, finally and with certainty, whether or not Justice Benjamin was influenced - we’re forced to take his word for it.

A bare majority of the Supreme Court agreed, reversing the decision of the West Virginia court. In an opinion by pivotal swing-voter Justice Kennedy, five Supremes (Kennedy plus the liberal wing: Stevens, Souter, Ginsburg and Breyer) agreed that Benjamin had used an improper standard when considering whether to recuse himself. Kennedy states the correct standard in approximately three similar iterations (bold added by me):

(1) whether, under the totality of the circumstances, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

(2) “not whether the judge is actually biased, but whether … there is an unconstitutional potential for bias.”

Most elaborately, Kennedy states (3a) the Court’s extant rule for treatment of Due Process issues, and then (3b) applies it to the case at hand, resulting in yet a third enunciation of the relevant test:

(3a) “[T]he Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

(3b) “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election— had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

The inquiry focuses on the appearance, the probability, the potential for bias under the circumstances - not on the presence or absence of actual bias (which only a mind-reader could know, if indeed the biased judge was aware of his or her own bias - for biases can be subtle and difficult to detect and acknowledge even within ourselves). Justice Kennedy observes that Caperton is an extreme case, and falls beyond the Constitution’s pale, even if it’s impossible to draw a bright line rule under which to precisely (objectively?) analyze future cases: “This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias that ‘cannot be defined with precision.’”

What gives me pause is Kennedy’s insistence on applying the lable “objective” to his construction: “objective standard,” “objective inquiry,” as I highlighted above. Yes, items of evidence are examined: the election was close, the campaign contribution was disproportionate, etc. - and no, there is no “subjective” attempt to determine if Justice Benjamin was actually biased. But in Kennedy’s (3b) test (above), doesn’t the objective/subjective distinction blur almost beyond recognition? In determining whether “all the circumstances would offer a possible temptation to the average judge,” don’t we have to know, or presume to know, quite a lot about the inner workings of the mind of an “average judge”? Even defining an “average judge” implies the accurate construction of a composite, median mindset.

Justice Roberts’ dissent (joined by conservatives Scalia, Thomas and Alito) elaborates on a related concern:

The majority’s analysis is “objective” in that it does not inquire into Justice Benjamin’s motives or decisionmaking process. But the standard the majority articulates—“probability of bias”—fails to provide clear, workable guidance for future cases.

Roberts proceeds to pose forty questions, attempting to make the case that the devil is in the details and the majority’s opinion gives no guidance on dealing with a variety of details that could occur in future cases. Roberts concludes:

The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Though I believe at least some subjective analysis is required to complete Kennedy’s inquiry, and I acknowledge it does not produce a bright-line rule, I could not disagree more with Roberts’ dissent. The Supreme Court was the last chance for justice to be done in this case. For justice to be done, Justice Benjamin could NOT be allowed to decide the case in favor of the company which had massively funded his election campaign (knowing that Benjamin would judge the case). For the Supreme Court to allow Benjamin’s participation would send a message to the public that justice can be bought - because that is the appearance, regardless of the reality (which we cannot know). If, in the absence of a bright-line rule, future cases must be decided on a case-by-case basis, so be it. Allowing Benjamin’s judgment to stand would have undermined public faith in judicial fairness.

Incidentally, Roberts’ forty questions (see the opion, linked above) invite perusal and, of course, answers. I started to go through them myself, and answers seemed obvious enough to me - so much so that I began to see the questions as an expression of petulance rather than an exercise in intellectual honesty. At least one Arizona lawyer, Keith Swisher, agrees. Swisher answered every question, concluding that only two or three of the forty qualified as legitimate. I tend to agree.

So was your faith in our judicial system preserved or eroded by Caperton v. Massey? If you enjoyed this article or have thoughts, feel free to leave a comment.

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At Slate.com, Daliah Lithwick writes about America’s prison problem and Senator Jim Webb’s (D-VA) upcoming effort to address it.

A couple of quotes from Lithwick’s column:

The United States, with 5 percent of the world’s population, houses nearly 25 percent of the world’s prisoners. As Webb has explained it, “Either we’re the most evil people on earth, or we’re doing something wrong.”

…

Webb also reminds us that while drug use varies little by ethnic group in the United States, African-Americans—estimated at 14 percent of regular drug users—make up 56 percent of those in state prison for drug crimes.

Good column, worth reading. Key an eye on Webb’s initiative.

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On May 26, the California Supreme Court issued it’s “Proposition 8″ (Prop 8) consolidated ruling on cases contesting the constitutionality under the California Constitution of the Prop 8 California ballot referendum. This referendum purported to ban same-sex marriage in California and had passed by a 52% to 48% vote on election day in November, 2008. Prop 8 had been a reaction to the California Supreme Court’s deeming same-sex marriage a fundamental constitutional right in an earlier 2008 decision (In re Marriage Cases).

Following passage of the referendum, opponents of Prop 8 immediately sued, arguing that a fundamental constitutional right (in reliance upon which 18,000 same-sex couples had already been married) could not be revoked by a majority vote. To allow such would put in jeopardy any minority right protected by the California Constitution.

In Tuesday’s ruling, the Court allowed Prop 8 to stand, but only by limiting its effect to mere symbolism. The important issue was whether Prop 8 embodied a constitutional revision (a substantial change - not allowed outside of a constitutional convention) or a constitutional amendment (a minor change properly the subject of a referendum).

The Court held that Prop 8 was a proper amendment, but (because) it did not alter any substantive rights of same-sex couples (to equal treatment and protection under the law). Prop 8’s only accomplishment was “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state and constitutional law.“  

So it’s semantics. Despite Prop 8, same-sex couples can obtain all the rights and privileges under the law as opposite-sex couples, but the certificate issued by California to commemorate their union will say “Domestic Partnership” or “Civil Union” at the top, rather than “Marriage.” Nothing else – at all – is changed. And the 18,000 couples married prior to this decision? They keep the designation of “Marriage.”

If it walks, talks and looks like a duck … it’s a duck. Distinctions without a difference don’t tend to last, and (considering demographic trends) this distinction probably won’t survive future referenda aimed at eliminating it.

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Before the Bush administration, the ’state secrets’ doctrine was used to exclude certain bits of evidence from trials if the judge agreed with the Executive Branch that damage to national security could result.

The Bush administration attempted to expand the doctrine so that whole lawsuits could be dismissed on the Executive’s motion, with the Executive as the sole arbiter of whether national security was at risk - even when the complaint was that the Executive’s conduct was illegal.

To the surprise of many, the Obama administration maintained the Bush position in pending lawsuits wherein the state secrets doctrine was at issue.

A three judge panel of the Ninth Circuit today unanimously reversed a District Court’s agreement with the Bush/Obama expansion of the state secrets doctrine - a result cheered by civil libertarians and proponents of open government.

The court’s opinion is available here.

Glenn Greenwald has detailed coverage and an interview with the plaintiff’s lead council at Salon.com.

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Vicious, incessant bullying in school — primary school, 5th grade in this horrible case — is certainly a massively underestimated problem in this country, even with the substantial attention the issue has received in recent years. I wanted to rebroadcast this CNN story even with whatever meager signal this blog generates, because I think the more people that hear about this, the better — the more likely some significant changes can be instituted.  

On April 16, eleven year-old Jaheem Herrera hanged himself in his closet and was found dead by his mother and young sisters. Jaheem made A’s and B’s in school. He was by any standard a cute kid (CNN photo, left). He had a best friend who sympathized with him over the bullying. He told his mother about it, and she had complained to Dunaire Elementary School administrators many times.

But Jaheem was repetitively called ugly, gay, snitch, and ”virgin” (latched on to by the bullies due to the happenstance that his family was from the Virgin Islands). The verbal abuse was predictably escalated to physical abuse — Jaheem’s 10 year-old sister said that he was choked in the bathroom. The Atlanta Journal Constitution’s extensive reporting on the incident notes:

In the wake of Jaheem’s suicide, other students’ parents have come forward to describe other alleged acts of violence at Dunaire. Some parents said their children were the victims of beatings with buckles and chokings. 

Yet the school was reportedly a model with regard to anti-bullying policy (from the CNN piece):

Allegations of such severe bullying surprises experts familiar with the school district. It’s anti-bullying program was considered exemplary and includes programs to raise awareness and a specially trained liaison. Students are even asked to sign a no-bullying pledge.

Obviously, these policy trappings are not enough. Or badly executed. Or ignored down in the trenches. Conscientious vigilance and monitoring are what is required of the adult administrators and teachers on the scene. It shouldn’t be that difficult to spot and root out this viciousness if adult personnel are not turning a blind eye, taking a ‘boys will be boys’ attitude.

Jaheem Herrera’s case mirrors that of a Massachusetts boy, Carl Walker-Hoover, also eleven, who hanged himself to death after incessant taunting and bullying at school just a week prior to Herrera’s suicide. Walker-Hoover was also repeatedly called “gay,” among other pejoratives.

One expert said that, “Anti-gay language is really the ultimate weapon for a bully who wants to degrade his or her peers.” Needless to say, neither of these pre-pubescent children was actually a homosexual.

My thought on this is that it’s pervasive in our society. According to a study quoted by CNN, 65 percent of teens report they are bullied each year, and most believe adults can’t help them. Now I understand that only extremely rarely does this lead to suicide. But no child should have to endure a hellish environment of incessant verbal abuse (and the ever present threat of physical abuse) at school. An elevated level of motivated vigilance by school personnel – and significant discipline, including removal, of discovered bullies — can go a long way to solve this problem, in addition to standard anti-bullying campaigns.

If you have school-age children, please be sensitive to this issue and be prepared to act. If this sort of abuse can occur right under the nose of the administration at a “model” school, imagine what it’s like in schools that are “just average.”

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On April 16, in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union, President Obama ordered the release of four Bush-era Office of Legal Council memos dealing heavily with the techniques and attempted legal rationalization of the “enhanced interrogation program” established by the Bush administration and used on “high value detainees.”

Some high-ranking members of the nation’s intelligence services lobbied Obama not to release the memos, or to do so in heavily redacted form. Obama released the memos almost entirely unredacted, but promised that CIA personnel who had in good faith relied on the executive branch Office of Legal Council’s advice that the techniques were legal, would not be prosecuted. This is widely regarded not to rule out prosecution of those who authorized and ordered the use of the techniques. 

The recently leaked International Committee of the Red Cross torture report (complied by cross-confirmation of prisoner interviews, and portrayed by some critics as prisoners’ tall tales) was confirmed nearly line for line by the Bush OLC memos.

The four memos are available for download (pdf) here.

Many reactions from political and legal commentators on the left and right are collected by The Atlantic’s Andrew Sullivan, here (pt 1) (pt 2) (pt 3):

The redaction (blacking-out) of the memos, where present, is sometimes poorly executed. As I read over the memos last night, i noticed several instances of a year being blacked out, followed immediately by the year being visible in a reference to the same document.

Dafna Linzer at ProPublica spotted a more significant error (or intentional slip?) in the redactions, where the name of ‘ghost detainee’ Hassan Ghul, was inadvertently left visible. Ghul’s whereabouts are unknown since 2004. He was not transferred to Guantanamo Bay with 14 “high value” detainees in 2007 as expected by humanitarian groups.

Read Linzer’s article here.

Clearly, this is a huge legal event, and a political firestorm in the making.

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CNN is reporting a unanimous decision by the Iowa Supreme Court, holding that a state law prohibiting same-sex marriage violates the equal protection clause of the Iowa Constitution. Iowa joins Massachusetts and Connecticut in allowing same-sex marriages. Read the court’s opinion, here. On page 63 of the opinion, the Court takes the unusual step of addressing an argument “left unspoken” by the government, that being religious opposition to same-sex marriage.

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A sad testament to the power of indoctrination.

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The LA Times reports on yesterday’s Prop 8 oral arguments before the California Supreme Court:

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

Court-watchers gleaned the above prediction from the attitudes, questions and statements of the Justices as they interacted with lawyers at the hearing.

The court’s written opinion is expected within 90 days.

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