Ethics

Following up on his previous posts about the Caperton case (here and here), University of Tennessee Professor Alex Long passes along this assessment of the opinion:

            As you may have heard, the Supreme Court?s decision in Caperton v. A.T. Massey Coal Co. is out.  In a 5-4 decision, the Court held in a case involving the issue of when a judge?s failure to recuse himself violates the Due Process Clause, the question is whether, ?under a realistic appraisal of psychological tendencies and human weakness,? the judge?s 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.?  Applying that standard to the facts of the case, the Court concluded that the failure of Justice Benjamin of the West Virginia Supreme Court of Appeals to disqualify himself in a high-profile case involving the company of an individual who had donated three million dollars in an attempt to defeat Benjamin?s opponent in a judicial election ran afoul of due process.  Justice Kennedy wrote the majority opinion.  Chief Justice Roberts dissented, as did Justices Scalia, Thomas, and Alito.

I have previously blogged about the case a little bit here and here.  I haven?t read the decision all that carefully yet, but it looks like this was one of those cases in which the breakdown of the vote and the opinions pretty closely tracked the substance of the oral argument.  The justices spent a good deal of time during arguments trying to nail down what the appropriate standard should be (if any) for determining when a judge?s refusal to disqualify amounts to a violation of the Due Process Clause, and that seems to have been the sticking point for several of the justices.  And hindsight being 20/20, the votes were somewhat predictable.

It was clear early in this case that the key challenge for Caperton?s lawyers would be to identify a workable standard for determining when a judge?s failure to disqualify amounts to a violation of the Due Process Clause that would command a majority.  After Caperton?s merits brief was submitted, Massey?s lawyers argued that Caperton had switched arguments since filing the cert. petition and the Court should dismiss the writ as improvidently granted. Massey?s lawyers argued that Caperton had relied on an ?appearance of impropriety? standard in the initial petition, but had switched to a ?probability of bias? standard in the merits brief.

Based on the oral argument, I had originally thought that the Court might just conclude that the facts of the underlying case were so extreme that the Justice Benjamin?s actions violated the Due Process Clause, but largely avoid trying to establish a clear standard.  Early in the oral argument, Ted Olson, Caperton?s attorney, suggested that the Court had used various terms to describe the standard of protection afforded to litigants under the Due Process clause, including ?the probability of bias, the appearance of bias, the likelihood of bias, [and] the inherent suspicion of bias.?  (Tr. at 4.)  At one point, Justice Ginsburg suggested that in other contexts the Court had used those terms interchangeably, so she viewed them all essentially as synonyms.  (Tr. at 35.)  Justices Stevens and Breyer both seemed generally in agreement with Ginsburg.  Justice Stevens perhaps expressed a willingness to craft a very narrow holding, noting that the Court had ?never confronted a case as extreme as this before.?  The Court could, he suggested, avoid precise definitions and ?stop at what?s obviously improper.?  (Tr. at 35)  Therefore, the need to articulate a clear standard was less compelling because the case ?fits the standard that Potter Stewart articulated when he said ?I know it when I see it.?"  (Tr. at 29-30)  Justice Breyer voiced a similar theme and perhaps summed it up best with the most memorable quote of the day:  ?Call it a ?probability?; call it an ?appearance.? Use the language that you want, but put them together, and they spell ?mother.?"  (Tr. at 47.)  Justice Souter also engaged in some fairly rigorous questioning of Massey?s lawyer, Andrew Frey.  Therefore, it seemed pretty clear to me from reading the oral argument transcript that Caperton had at least four justices sewn up. 

Likewise, it seemed pretty clear from the transcript that Justice Scalia was deeply troubled by the imprecision of the asserted ?probability of bias? standard.  Chief Justice Roberts also expressed skepticism about whether a ?probability of bias? standard was any more precise than an appearance of bias standard.  Olson responded that the test was really one of probable cause and noted that ?the Court frequently decides questions involving due process, equal protection, probable cause, speedy trial, on the basis not of mathematical certainty, but in this case where an objective observer would come to the conclusion ? knowing all of the facts, ? that a judge or jurist would probably be biased against that individual or in favor of his opponent.?  (Tr. at 4-5.).  Apparently, Olson?s response didn?t satisfy Roberts? slippery-slope concerns, as evidenced by the fact that Chief Justice Roberts listed no less than 40(!) ?uncertainties? he believes the majority opinion opens up for lower courts.  Justice Thomas said nothing during oral argument, and Justice Alito was relatively quiet.  But since this was due process we were talking about here and since there was a strong federalism theme underlying this case, it shouldn?t have come as any great shocker that these two justices sided with Scalia and Roberts.  So, that really left Justice Kennedy as the key.

            While it seemed clear to me from the oral argument transcript that Kennedy was bothered by what happened during the judicial election in West Virginia in 2004, he had some serious concerns about what the standard should be.  Kennedy made clear during oral argument that if something like the ?appearance of bias? was the preferred standard, he wasn?t willing to go along.  (Tr. at 15.)   Therefore, perhaps it shouldn?t be too surprising that (a) Kennedy wound up writing the majority opinion and (b) the majority opinion eschewed an appearance of bias standard and adopted something like a probability of bias standard.

            Kennedy?s opinion goes to great lengths toward the end to point out just how extreme the facts of this case were and to put to rest any concerns that the decision will lead to an avalanche of disqualification motions or signals the end of judicial elections.  Hopefully, I?ll have something more to say about the potential consequences of the decision a little later (including tackling at least one or two of Roberts? inclusions in his parade of horribles).