In its orders this morning, the U.S. Supreme Court has reversed the West Virginia Supreme Court’s decision in Caperton v. A.T. Massey Coal, holding that the federal Due Process Clause required Justice Benjamin to recuse himself. The Court divided 5-4; both opinions are here. The majority was written by Justice Kennedy, the dissent by Chief Justice Roberts. (If you have even casually followed the U.S. Supreme Court, you can guess the other Justices joining each opinion.)

It’s All About Appearances, Which the Court Calls “Objective Standards”

The majority holds that proof of actual bias is not required to show a due process violation. As the majority explains, it would be almost impossible to second-guess a judge’s decision that he is not biased.

The Court thus announces an “objective” test for conflicts of interest, which looks to “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.'”

In other words, it violates due process if it violates due process. The standards the Court announces might be “objective”, but they are not measurable.

The test seems to boil down to the appearance of bias. The Court cannot quite say that, because that is actually not one of the interests protected by the Due Process Clause. So, the Court makes a very clever move. Because it cannot determine the true subjective intent of a judge, it must look to an objective test dependent on outside factors. And those factors are whether there is an appearance of bias.

So, through the back door, the Court has announced that the mere appearance of bias can be enough to violate the federal Due Process Clause, at least in an exceptional case.

Guidance for Future Recusal Motions

Those hoping the Court would broadly criticize judicial elections got nothing of the kind. Instead, they got this implicit approval of at least some campaign contributions by litigants to judges:

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.

Okay. How do we decide which are “exceptional case[s]” and which are routine campaign contributions by a litigant or attorney?

• “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.”

  Let’s call this the “significant and disproportionate influence” standard. I suspect that will be the way that this recusal argument is presented in future cases.

• If it’s a close election, that seems to weigh more. Although the Court carefully says that it doesn’t matter if you can disprove that the contribution mattered — all that matters is appearance.

  This will make claims harder in heavily one-party states or lopsided elections.

• It seems to matter if the contribution is large relative to other contributors or if it gives the judicial candidate a big advantage over the field of other candidates.

  It will be interesting to see how this is handled by judicial candidates who face poorly financed opponents. This may also suggest that judges should seek more contributions, not less, to cure the perception of bias.

• There is no requirement of proof that the contribution is the reason the judge won the election.

Using the language that may get quoted in the most florid recusal motions, and summing all of that up, the opinion said:

Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” . . . Blankenship’s campaign contributions — in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election — had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.”

The Court also addressed, and rejected, concerns that today’s decision could lead to a flood of recusal motions. The Court noted that its previous recusal decisions did not lead to such a result. And, most importantly, it suggested that most states have other means of curbing abuses short of the constitutional level, such as state codes of judicial conduct.

The Dissent

The dissent would have held the line at actual bias rather than announcing a new rule designed just to capture this one, “exceptional” case:

Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: “Hard cases make bad law.”

The dissent also included a list of 40 questions it felt were raised by the majority’s new standard, reminding me of my own immediate reaction to the case last fall.

For Texas?

While the case was pending, there was much speculation about what Caperton v. A.T. Massey Coal might mean for the future of Texas judicial elections. In short, the problem is still up to the Texas Legislature to fix. The Court made quite clear that most judicial elections — even most contributions by litigants and attorneys — are perfectly acceptable under the federal Due Process Clause. Finer-grained reforms would have to come from state law.

Our Texas lawmakers are done until 2011, other than the few issues that might get picked up for a special session later this year or next year. I would be surprised to see judicial election reform among those issues chosen by the Governor.

A less contentious avenue might be tweaking Texas’s code of judicial conduct. While only the Legislature can change the terms of elections or campaign finance — and changes to campaign finance rules inevitably lead to their own, heated constitutional litigation — there might be more subtle ways through the rule-making process to alter which judges can sit on which cases. Some judges already have personal policies that restrict whether they will take contributions from litigants likely to be before the Court in the near future. Implementing some version of that as a recusal rule would go a long way toward fixing the public perception of judicial elections.