I Know It When I See It

The U.S. Supreme Court just released an interesting opinion in CAPERTON Et Al. v. A. T. MASSEY COAL CO., INC., Et Al. Here's the case in a nutshell. Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court—more than 60% of the total amount spent to support Justice Benjamin's campaign—while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict.

From the opinion:

Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is 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.” There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.

...

Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Chief Justice Roberts makes some interesting points in his dissent.

Until today, we have recognized exactly two situations in which the Federal Due Process Clause requires dis­qualification of a judge: when the judge has a financial interest in the outcome of the case, and when the judge is trying a defendant for certain criminal contempts. Vaguer notions of bias or the appearance of bias were never a basis for disqualification, either at common law or under our constitutional precedents. Those issues were instead addressed by legislation or court rules.

Today, however, the Court enlists the Due Process Clause to overturn a judge’s failure to recuse because of a “probability of bias.” Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required.

And he asks a litany of questions--six pages worth. For example,

How much money is too much money? How do we determine whether a given expenditure is “disproportionate”? Disproportionate to what?

I did find one of his arguments disingenuous. Don Blankenship spent $3 million dollars on Justice Benjamin's campaign but only gave a direct contribution of $1000. Since Benjamin and his campaign had no control over how the $3 million was spent, Blankenship did not buy a judge nor is there a risk of bias as a result of Blankenship's contributions.

I think the court missed an opportunity to clarify the law and perhaps answer Roberts' many questions. I see a parallel in the obscenity cases the court has decided.

In a 1964 decision Justice Stewart Potter famously noted, I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

There is no uniform national standard in federal obscenity law. And the legal precedent, the Miller test resulting from a case in 1973, essentially guarantees that something that is legally obscene in one jurisdiction may not be obscene elsewhere. So the First Amendment protections of free speech can vary by location within the U.S., and over time.

The Miller test has three parts:

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I'm not saying it would've been easy, but coming up with language where community standards would determine whether there's a risk of actual bias seems possible to me.

Someone in California, Illinois or New York shells out $3 million for a judge's campaign where the $3 million is a small percentage of the total campaign expenditures and then benefits from that judge's decision might not have the risk of bias. Someone in West Virginia shells out $3 million--60% of the campaign expenditures--to get a judge elected and then benefits from that judge's decision in a $50 million appeal. That's obscene.

But I'm not a lawyer so what do I know?