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SCOTUS: Judges Must Avoid Bias

The Supreme Court continues its end-of-session flurry with a ruling in Caperton v. Massey Coal Company.

The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.   “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause,” Justice Anthony Kennedy said for the court.

With multimillion-dollar judicial election campaigns on the rise, the court’s decision Monday could have widespread significance. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000.  “Judicial elections have become more expensive, more negative and more subject to influence by special interest groups,” said Chief Justice Margaret Marshall of Massachusetts, president of the Conference of Chief Justices.

As a matter of public policy, I’m sympathetic to this ruling.  After all, even if the judge was fair, the losing side would never believe it if the judge had taken campaign contributions from the other side.  And, as the LII summary of the case makes clear, this was an exceptional circumstance:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court–more than 60% of the total amount spent to support Justice Benjamin’s campaign– while preparing to appeal the verdict against his company.

But how far does this go?  Kennedy writes that “Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.”  And, again, it absolutely was. But how does one know what a higher court will judge “exceptional” a priori?

Doesn’t this logically mean you can’t have elected judges?  Counterintuitive as it may be, the scholarly literature I have seen on the matter — and, admittedly, I haven’t kept up with it in recent years — found no significant difference between how elected and appointed judges rule.

Certainly, many members of the Supreme Court itself have all manner of possible conflicts owing to the political party that appointed them and their career before getting appointed to the court.  Indeed, the most famous example, as Volokh Conspiracy commenter tbaugh reminds me, happened in arguably the most important case in the Court’s history:  Marbury v. Madison.   Chief Justice Marshall had been a key party to the case in controversy.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Eric Florack says:

    “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause,” Justice Anthony Kennedy said for the court.

    Doesn’t this logically mean you can’t have elected judges?

    I wonder; Might that principle also be extended to include a judge who makes statements which could arguably be taken as pushing the agenda of group identiies of whch she claims membership?

    Such as, Female and Racial Minority, for example?

    Hmmmm.

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  2. PD Shaw says:

    But how does one know what a higher court will judge “exceptional” a priori?

    Classic Kennedy, the only one who knows the line is him. He is the decider.

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  3. “Doesn’t this logically mean you can’t have elected judges? Counterintuitive as it may be, the scholarly literature I have seen on the matter — and, admittedly, I haven’t kept up with it in recent years — found no significant difference between how elected and appointed judges rule.”

    There was a study done pretty recently that showed pretty conclusively that elected judges side with in state parties over out of state parties a highly disproportionate number of cases. I don’t remember if it compared the number to the rate of appointed judges or not.

    I agree that the larger reasoning in the opinion begs a lot of questions, but the decision itself seems pretty obvious.

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  4. just me says:

    This decision doesn’t bother me that much-I think sometimes the appearance of bias is just as bad as bias itself-and this is pretty much why there is recusal process for judges in this situation. I am sure a lot of judges-probably most judges who choose to recuse themselves do so more for appearance of bias than that they can’t fairly judge the case at hand.

    I think of the course the problem is that there isn’t a clear line to judge when recusal is necessary. Personally I am not a huge fan of elected judges, but there are problems that come with an appointment process as well-I suspect appointment processes are more expensive and elections are cheaper, so at a local level elections may make more sense.

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  5. PD Shaw says:

    I have not read the opinion, but the fact that it was a 3-2 vote, indicates to me that it was an issue that reasonable judges might disagree. Were the other 2 votes bought?

    There is a better approach, the highest decisions of the state courts are reviewable by the SCOTUS. If a party aggrieved by the decision believed that due process was violated because the decision was in error due to financial bias on the court, the SCOTUS can review it to see if there was corrupt influence or if the decision was supported by the record.

    The problem with recusals is that it works against one of the main protections against bias on appeals: a five-to-nine member panel.

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  6. Anderson says:

    Doesn’t this logically mean you can’t have elected judges?

    Not quite. I would think that relatively few judges would owe quite so much to a single contributor, and of those, I would hope the vast majority would have the decency to recuse, or (as in Mississippi) would be forced to recuse by their fellow judges.

    the highest decisions of the state courts are reviewable by the SCOTUS.

    Only on issues of federal law. The merits of the Caperton case were, IIRC, purely state law. The only federal issue was the due-process issue re: recusal, which as we can see was indeed appealed.

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  7. PD Shaw says:

    anderson, I’m disagreeing with the remedy. The SCOTUS could have reviewed the merits of the case, along with the allegations of financial influence and decided whether the outcome was clearly erroneous (or some other deferential standard of review). Creating a vague federal right of recusal doesn’t seem to be very helpful.

    I haven’t read the case, but where does the case go after it becomes a 2-2 decision?

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  8. [...] Monday’s ruling in Caperton v. Massey Coal Company that “[e]lected judges must disqualify themselves from cases involving people who spent [...]

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