Supremes Rule: Justice Can’t Be Bought

Must a judge recuse himself from a case in which there is an appearance of bias? Well, yes.

Brendan Smialowski/Getty Images
Brendan Smialowski/Getty Images

Caperton v. Massey is one of the 5-4 squeakers that the Supreme Court got right. It is a case that may not make the front page of many newspapers, but in its own way may be as crucial as the upcoming decisions in several Voting Rights Act and affirmative action cases.

Caperton put before the Supreme Court the question of whether Brent Benjamin, a justice of the West Virginia Supreme Court, should have been recused from a case involving Don Blakenship, the principal officer of a coal company who had spent almost $3 million of his own money to help get Benjamin elected to the state’s highest court.

In an opinion written by Justice Anthony Kennedy, the Supreme Court held on Monday that on the facts of the case, which it called “extreme by any measure,” the Constitution required Benjamin’s recusal. Caperton has been closely watched by those who advocate firmer rules protecting judicial independence.

The Constitutional provision at issue in Caperton is the due process clause. One of the essential features of due process is the right to appear before an impartial tribunal—that is before a decision maker (judge or jury) who has not prejudged the case and is not compromised by interest in or connection to the underlying dispute or the parties to the dispute. It is under the provisions of the due process clause of the 14th amendment to the Constitution, for example, that state laws permit the removal of a judge from a case in which he or she has a financial or familial interest.

In fact, judicial impartiality is such an important feature of due process that federal and state courts provide for the disqualification or recusal of judges from cases in which there is no evidence of actual bias, but in which the appearance of bias would make a reasonable person believe that the judge could not be impartial. “… Justice must satisfy the appearance of justice,” the Supreme Court held over 70 years ago in Tumey v. Ohio. It is this appearance of bias standard that was at issue in Caperton.

The American Bar Association, the American Judicature Society and a host of scholars have vigorously argued that states should switch from electing their judges to appointing judges.