For state court judges, most of whom are elected, the rough and tumble of judicial campaigns can create myriad opportunities for conduct or statements that might later provide a basis for judicial recusal. States responded by imposing restrictions on what judicial candidates could say about contested legal issues during the course of a campaign. But in 2001, in Republican Party of Minnesota v. White, the Supreme Court struck down one such provision, the Minnesota Announce Clause, which prevented judicial candidates from announcing their views on contested issues that might come before the court. The predictable result of the White case was a virtual free-for-all in judicial elections in some states, further imperiling the public’s confidence in judicial independence and threatening the impartial judge mandate of the due process clause.
After White, the ability to recuse judges was the only remaining safeguard for litigants to protect their due process right to an impartial tribunal. A majority of the Supreme Court in Caperton seemed to recognize this.
The real story in the Caperton decision, though, is the dissent filed by Chief Justice John Roberts and joined by the other conservative stalwarts on the court—Scalia, Clarence Thomas and Samuel Alito. Here again, the chief justice reveals a recurring theme of his jurisprudence—that complex problems are simply beyond the reach of the Constitution. In his dissent, the chief justice argues that the probability of bias cannot violate the due process rights of litigants because to declare so would lead to questions about the range and extent of probable bias that might be objectionable. In fact, the chief justice lists 40 questions that he suggests would remain unanswered by the majority’s decision. The questions include, “how much money is too much money” for a litigant to contribute to a judicial candidate to invoke the probability of bias? And “does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?” Rather than undermine the soundness of the majority’s opinion, this litany of anxious questions instead reveals a chief justice of a somewhat fragile judicial constitution.
While it’s true that one never knows in a particular case what the answers to these kinds of questions might be, this is what trial judges do: answer questions—lots of them—after hearing from the parties. There is no reason to believe that lawyers and trial judges will not be able to weigh these issues in recusal proceedings—especially if states are willing to provide additional guidance for courts hearing recusal motions. And not all of the questions that lawyers (or chief justices) put before trial judges are that hard. I feel safe in suggesting that the answers to the two questions above are: (a) $3 million and (b) yes. Moreover, the reality is that most of these issues will not need to be resolved by the courts. Judges with integrity and a sense of the public trust (most judges) would voluntarily withdraw from such cases and obviate the need for a hearing to answer Justice Roberts’ questions.
More and more we’re getting the sense that we have a chief justice with a very limited view of the Constitution’s reach. Some might laud this and call it judicial restraint. But it increasingly comes perilously close to narrow-mindedness. It makes little sense to come before Congress in his second year as chief justice and argue, as Justice Roberts did in 2007, that Congress’ failure to provide a “substantial increase” to the salaries of federal judges had “reached the level of a constitutional crisis that threatens to undermine the strength and independence of the … judiciary,” and yet suggest in Caperton that the Constitution is not at all implicated by a judge hearing a case involving a party from which he’s received $3 million in campaign contributions.
Perhaps this is what President Obama was alluding to when he announced that he would appoint a Supreme Court justice with “the common touch.” It takes a common touch, I guess, to understand, that the very legitimacy of the court system is at stake when the public perceives that justice may be available to the highest bidder. The right to an impartial tribunal under the due process clause is a central pillar of an open and fair justice system. Without it, no one can be seriously asked to resolve their disputes in courts rather than on the streets with their fists.
Sherrilyn A. Ifill is a professor of law at the University of Maryland School of Law and a civil rights lawyer.