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.