Yesterday’s Supreme Court decision in Caperton v. A.T. Massey Coal Co. should serve as a warning to “libertarian centralists” who promote federal litigation as a simple answer to state-level violations of individual rights. The case itself dealt with a state supreme court judge’s refusal to recuse himself. A five-to-four majority of the federal Supreme Court, led by Anthony Kennedy, opted to micromanage the state court’s affairs while simultaneously rejecting the notion that there would be any unforeseen consequences. In 2002, a jury ruled against Massey Coal Co. in a civil trial and ordered the company to pay $50 million in damages. By 2004, the trial court had rejected Massey’s efforts to set aside the verdict and the case was headed for the West Virginia Supreme Court of Appeals. Judges on that court are chosen in partisan elections for 12-year terms. As the 2004 election approached Don Blakenship, Massey’s CEO, supported Brent Benjamin, who was running against incumbent Justice Warren McGraw.
Blakenship donated the legal maximum of $1,000 to Benjamin’s campaign committee. Blakenship also established his own 527 organization, which independently raised and spent $3 million in support of Benjamin’s election. Benjamin ultimately defeated McGraw by about 48,000 votes out of 716,000 cast.
Not surprisingly, the plaintiffs in the Massey litigation – known here as Caperton – moved to recuse now-Justice Benjamin from hearing Massey’s appeal. Benjamin denied the request, citing a lack of any “objective evidence” that he was biased or had prejudged the case. In 2007, the Court of Appeals reversed the Massey by a 3-2 vote with Benjamin in the majority. Caperton asked for and received a rehearing after two of the judges – one on each side – recused themselves. Benjamin, however, again declined to recuse himself. Two new judges were appointed to replace the recused ones, and the new panel again ruled for Massey by a 3-2 vote, with Benjamin again in the majority.
Caperton asked the U.S. Supreme Court to decide whether Benjamin’s refusal to recuse himself violated the due process requirements of the fifth and fourteenth amendments. Traditional state and common-law standards did not require recusal, since Benjamin did not have a direct financial interest in the outcome of the case and he’d made no public statements indicating bias. So the Supreme Court majority, led by Justice Kennedy, decided to fashion a new standard. Kennedy said “all the circumstances of this case” mandated recusal under the fourteenth amendment, because Blakenship’s independent support of Benjamin’s election created “a serious risk of actual bias.”
Kennedy was joined by what’s commonly described as the court’s liberal bloc: David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens. Seven years ago, this same group dissented in Republican Party of Minnesota v. White, a decision striking down Minnesota’s ban on political speech by candidates for elected judgeships. The dissenting opinions in that case by Stevens and Ginsburg express ambivalence for the very practice of electing judges. Then-Justice Sandra Day O’Connor, who actually joined the majority, went even further and openly opposed judicial elections. She said judges shouldn’t have to consider public reaction – or face electoral consequences – for decisions they make on the bench.
In Caperton, the Kennedy majority took advantage of the opportunity to condemn what it deemed “disproportionate influence” by a person seeking to influence the outcome of an election:
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. We conclude that there is a serious risk of actual bias–based on objective and reasonable perceptions–when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin’s campaign committee. Caperton claims Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.
Massey responds that Blankenship’s support, while significant, did not cause Benjamin’s victory. In the end the people of West Virginia elected him, and they did so based on many reasons other than Blankenship’s efforts. Massey points out that every major state newspaper, but one, endorsed Benjamin. It also contends that then-Justice McGraw cost himself the election by giving a speech during the campaign, a speech the opposition seized upon for its own advantage.
Now, Kennedy’s rhetoric seems quite reasonable on the surface. But remember, this isn’t an op-ed expressing Kennedy’s personal views; it’s a Supreme Court opinion that constitutes binding law on the lower courts. So how does one apply the standard here in future cases? Chief Justice John Roberts authored a dissenting opinion that raised 40 separate questions that future courts will now have to answer in light of the majority’s decision to order Justice Benjamin’s recusal, such as “What level of contribution or expenditure gives rise to a “probability of bias?” and “How do we determine whether a given expenditure is ‘disproportionate’? Disproportionate to what?”
Kennedy tries to ignore secondary consequences of his decision by repeating that this was an “extreme” case. But as Roberts noted, “Claims that have little chance of success are nonetheless frequently filed. The success rate for certiorari petitions before this Court is approximately 1.1%, and yet the previous Term some 8,241 were filed.” Opening the door to more litigation, well, opens the door to more litigation, even when you state at the outset you’re not trying to encourage more litigation.
Antonin Scalia, in a separate dissent that I’ll cite verbatim, explains the problem more eloquently:
The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law. See this Court’s Rule 10. As The Chief Justice’s dissent makes painfully clear, the principal consequence of today’s decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges. This course was urged upon us on grounds that it would preserve the public’s confidence in the judicial system. Brief for Petitioners 16.
The decision will have the opposite effect. What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. The Court’s opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated–and likewise the law governing it, which will be indeterminate for years to come, if not forever. Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means.
A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed–which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.
This is sound advice*, and I would ask those libertarians who advocate an expansive use of the fourteenth amendment to correct state-level injustices such as eminent domain and licensing monopolies to consider the secondary consequences of such positions. Whatever marginal gains one might make in advancing liberty through the government’s courts, in almost all cases it will be offset by the costs of expanding federal power and the surrounding legal infrastructure. And as the Caperton decision demonstrates, the resulting monopoly judicial product will simply raise more questions then it purports to answer.
*I’d note that Scalia wrote the opinion in the Minnesota case striking down the state’s ban on judicial candidate speech; he wasn’t concerned about micromanaging state affairs when it came to a perceived first amendment violation, but here he’s unwilling to apply that same standard when it comes to the fifth and fourteenth amendments.
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The Supreme Court’s mantra, pretty much from the beginning, has been to promote the centralization of power.
But there’s an insidious aspect to the centralization of power — you don’t have to actually exercise the power to get it. You merely have to assert that you are the one who gets to decide.
The other insidious aspect of it is that you can always count on there being at least one vocal faction clamoring for centralization of power in some way that works to their favor. It’s easy to oppose the centralization of power that works against you. But the centralization of power in ways that benefit you are the real danger, because it facilitates the centralization of power in ways that don’t.
The effect Scalia didn’t mention is that it will now be harder for elected judges to raise money.
Could have been avoided if the judge decided not to vote on the case.
Please see conflicting interest and the supreme court justices own recluse when interest are conflicting.
Not saying the decision is correct but the judge should have let some one else precede if conflict of interest was shown.
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