The majority opinion by Justice Kennedy finds a due process violation where a West Virginia Supreme Court justice refused to recuse himself in a case in which one party, who had $50 million at stake, had spent more money (over $3 million) successfully trying to elect that very justice than the sum total of all other money spent on behalf of that justice. As stated by the U.S. Supreme Court, "[o]n these extreme facts the probability of actual bias rises to an unconstitutional level."
The chief complaint of the Chief Justice is that lawyers being clever, they will find ways to characterize other cases as likewise extreme, thus opening the floodgates. In part this is simply a fight between a functionalist majority--adopting an open-ended standard--and a formalist dissent--favoring a rule that would bar all due process recusal claims that do not fall into one of two categories enunciated in prior Supreme Court cases: 1) due process requires a judge with a "direct, personal, substantial pecuniary interest in reaching a conclusion" to recuse; and 2) a judge may not preside over a criminal contempt prosecution if the judge was himself the object of the allegedly contemptible behavior.
I tend to be a functionalist (although I certainly appreciate the attraction of more hard-edged rules in some contexts), but quite apart from that broad orientation, there is much that is problematic about the dissent, even taken on its own terms. To wit:
1) One could as easily play 40 questions with the part of the test (traceable to the Court's 1927 decision in Tumey v. Ohio) that the dissenters accept. What counts as a "personal" stake? How "substantial" must it be? Does that depend on the judge's wealth or is it an absolute standard? Does a spouse's financial interest count? How about a parent's or a child's? What counts as "direct?" And so on. It is clear that the Tumey "rule" accepted by the dissenters is no more hard-edged than the majority's approach in Caperton. And yet, as Justice Kennedy notes, there has been no flood of Tumey claims.
2) Why do the dissenters draw the line at Tumey and In Re Murchison (the 1955 contempt case)? Murchison does not purport to derive the circumstances when due process requires recusal from the original understanding or the common law. Rather, the Murchison Court engages in first-order analysis of the concept of minimal procedural fairness. Here is how Hugo Black reasons for the Court in Murchison:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.In Tumey, to be sure, the Court (through C.J. Taft), does purport to root its rule in the common law background that was presumably adopted via the Fifth and Fourteenth Amendments. But as noted above in my point 1, the Court then synthesizes those cases in a very open-ended standard. So if the Caperton dissenters accept an open-ended standard (as they do via Tumey) and a principle of recusal not in any way derived from the original understanding or the common law (as they do via Murchison), what possible basis do they have for categorically declaring illegitimate the concatenation of these two: an open-ended standard not derived from the original understanding or the common law?
3) The closest thing the dissenters have to an answer to that question is the following dicta from Tumey: "All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion." Yet even this language does not support the dissent's categorical denial, for the operative word here is "generally." Yes, in general, grounds for recusal under state law do not rise to the level of a due process violation, but in extreme cases, they can. And that's exactly what the Caperton majority says.
4) The dissent also fails to come to grips with the fact that, with an important class of potential exceptions to which I'll turn in point 5, all of the ambiguities that are raised by the Chief Justice's 40 questions are also ambiguities in the state law of recusal. As the Caperton majority notes, West Virginia has adopted the ABA test for appearance of impropriety: "whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." There is no reason to think that standard has proven unworkable.
5) But that brings us to the best point the dissent has: There is a difference in the procedural posture of a recusal motion under state judicial ethics standards--which is addressed to the discretion of the judge whose recusal is sought--and a due process claim that a non-recusing judge's participation tainted the outcome of proceedings--which is addressed to the legal judgment of a reviewing court. One could think that the ambiguity of the ethics rules is acceptable in the former context but not the latter. This is, I acknowledge, a legitimate concern, but I think it still doesn't do that much work for two reasons:
a) C.J. Roberts raises the possibility in his question 33 that the non-recusal of a state judge could serve as the basis of an independent lawsuit in federal court pursuant to 42 U.S.C. sec. 1983, but that is extremely unlikely. Much more likely, a litigant would have to raise the due process concern on direct review in the state court system, and state court judges will generally be quite reluctant to call out their colleagues for non-recusal. The only federal court that could get involved would be the U.S. Supreme Court by way of certiorari, which it is unlikely to do very often.
b) Once again, Justice Kennedy's point about Tumey is instructive. Tumey motions are addressed to the legal judgment of the reviewing court, just like Caperton motions will be, and yet they have hardly flooded the courts.
Finally, I offer a point that is not intended as a criticism of the dissent but simply an observation: The 5-4 ideological split in this case may obscure what I suspect is an important subtext of the case. With the exception of Justice Kennedy, all of the Justices in the majority in Caperton dissented in 2002 in Republican Party of Minnesota v. White, a case in which Justice Scalia wrote the majority. That case struck down a Minnesota judicial canon that forbade a candidate for judicial office from announcing "his or her views on disputed legal or political issues." The dissenters there were sympathetic to the notion that if a state is going to have judicial elections, it can nonetheless take steps to ensure judicial independence. Justice Scalia's majority opinion, by contrast, took pains to argue that getting elected to a judgeship on a "platform" is not inconsistent with judicial impartiality. The tone of Justice Kennedy's concurring opinion in Republican Party of Minnesota more or less split the difference: He was all for strict standards of impartiality but thought that these could not be constitutionally pursued by limits on campaign speech.
Thus, the breakdown in Caperton may well be attributable to the respective attitudes of the various Justices towards judicial elections that are run like other elections. That would also explain why Justice Kennedy, who is not generally sympathetic to limits on campaign finance for other elected officials, joined--indeed led--the "liberals" in Caperton: When it comes to judicial elections, he shares their regulatory sympathies.
Posted by Mike Dorf