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.
