Literal Due Process

In my post on Tuesday, I pointed to reasons why the parade of horribles set forth in the dissent of C.J. Roberts in the Caperton case is unlikely to come to pass. But at least the Chief Justice was engaged with the likely impact of the decision. He thought that the harm from a possible flood of new meritless Caperton claims seeking recusal would outweigh the benefits of a few additional recusals. Justice Scalia wrote an additional brief dissent in which he agreed with that prediction but seemed more concerned with the legitimacy of the majority's action. Here's the core of his analysis on the legitimacy point:

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.

The contrast between "Divinely inspired text" and the Due Process Clause strongly harkens back to the dissents of Justice Hugo Black and others from the cases--especially Griswold v. Connecticut--decrying the "natural law due process philosophy" that, in Black's view, underwrote the Court's efforts to give substantive content to the Due Process Clause.

Yet it's worth noting the very different context. Justice Black was a strong critic of substantive due process (except for incorporation of the Bill of Rights), and Justice Scalia and others have often relied on the same sort of skepticism as Black expressed as the grounds for their dissents from cases finding substantive rights like abortion or same-sex intimacy protected by the Due Process Clause. However, Caperton was not a substantive due process case. It was a procedural due process case--or what a non-lawyer might think of as a literal due process case: The complaint was that the extraordinary financial backing given by one party to the campaign of a judge in the case deprived the other party of a neutral adjudicator. It's hard to state an objection that more clearly sounds in due process, conventionally understood.

Thus, whatever one thinks of the likely consequneces of Caperton, the notion that it is somehow an activist departure from the text of the Constitution is simply wrong.

Posted by Mike Dorf