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Where Empathy Takes You--Again



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There is a nicely illustrative little decision by the Supreme Court today, in the case of Caperton v. Massey Coal.  The coal company in question had been held liable in West Virginia courts for damages to the tune of $50 million.  Then, while an appeal of the case pended in the state supreme court, the CEO of the company spent a lot of money–a few million dollars–helping to unseat a sitting justice of the court and replace him with another in the 2004 state elections.  The case came up on the docket after the election.  The new justice, Brent Benjamin, declined to recuse himself from the case when it was moved that he do so (update: and the lower court was reversed by a one-vote margin–should’ve said that at first).  No West Virginia statute or judicial code required his recusal.  The question before the U.S. Supreme Court was whether the due process clause of the Fourteenth Amendment, understood to guarantee “a fair trial in a fair tribunal,” required Justice Benjamin to recuse himself.

By a 5-4 vote, the Court ruled today that due process required Benjamin’s recusal.  Justice Anthony Kennedy, our current empathizer-in-chief, wrote for the majority.  A first reading of Kennedy’s opinion will tug at your sympathies as well.  It sure does look awful bad when a fellow spends $3 million to get a judge elected and the judge declines to recuse himself and then rules in the fellow’s favor.  Why, it looks like Don Blankenship, the Massey Coal CEO, bought himself a supreme court justice!

But as Chief Justice John Roberts notes, in a dissent joined by Justices Scalia, Thomas, and Alito, this ruling opens up one serious can of worms.  The Court’s precedents had previously identified just two kinds of cases where the due process clause requires judicial recusal: when a judge has a palpable financial interest in the outcome, and when he could not be trusted not to act with antipathy toward a defendant in a criminal contempt case arising from the defendant’s behavior in the judge’s courtroom.  The Caperton case goes way beyond those precedents and bodes very ill indeed, however much Justice Kennedy wants to keep repeating that it’s an “extreme” case. 

In the most devastating part of his opinion, Roberts begins to state, in numbered paragraphs, the sorts of questions “courts will now have to determine” without any real guidance from Kennedy’s opinion.  He then rolls out forty numbered paragraphs.  Forty!  And since most are multi-part questions, there are really about 100 questions–real, nagging, legal problems–prompted by this ruling.  At the end of his list, Roberts understatedly says, “These are only a few uncertainties that quickly come to mind.”  I have this mental image of Roberts sitting in his chambers saying to his clerks, “Got another one?  Oh, that one’s good.  And then what?”  One of my favorites was number 10: “What if the [judicial] candidate draws ‘disproportionate’ support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?”  The context, of course, is that of an elected judiciary, not our appointed federal judges, but somehow I couldn’t help thinking of Judge Sonia Sotomayor. . . .

You really should read it all yourself.  Caperton is a case study in the war between empathetic judging and intellectually coherent jurisprudence.  As Justice Scalia notes in a brief additional dissent for himself alone, “The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution.”  Precisely.



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