Legal News

A Recusal Puzzler: Making Sense of the Massey Ruling

By Ashby Jones

On the one hand, the majority opinion in the Supreme Court’s Massey case, which came down on Monday, was straightforward enough. The court held that state-court judges should disqualify themselves when a party’s campaign contributions are large enough to raise “the probability of actual bias.”

But what exactly that means is hard to know, partly because while the amount at stake in the Massey case was $3 million, the court didn’t specify a dollar amount for judges to consider.

Writing at the NYT, John Schwartz reports that the ruling could well bring forth a deluge of requests for judges to recuse themselves from cases. That said, whether that leads to actual recusals is uncertain.

According to the NYT story, Bradley A. Smith, chairman of the Center for Competitive Politics, a group that opposes campaign regulations on First Amendment grounds, wonders about the Massey decision’s precedential impact. He called the ruling "sort of the Bush v. Gore of campaign finance law," referring to the Supreme Court opinion that decided the 2000 presidential election and was deliberately written to have limited weight going forward. Smith said that whether the case has a big impact could turn on the rulings of lower courts.

In Wednesday’s WSJ, Nathan Koppel writes that the decision could hasten a movement already underway among several states that are revising the way they select their judges.

For instance, the Nevada legislature recently approved a 2010 ballot initiative that will ask voters to adopt an appointment system for judges. And legislation is pending in Wisconsin to allow as much as $1.2 million in public financing for state supreme court candidates.

According to Sue Bell Cobb (pictured), the chief justice of the Alabama Supreme Court, the status quo is far from ideal. “The massive amount of money flowing into judicial races certainly impacts the perception of whether courts can be fair.” Cobb was elected to her current post in a 2006 race in which she and her opponent raised more than $7.5 million — one of the highest campaign totals in any state supreme court race, she said. Campaign contributions have not skewed results in Alabama, she said, but it has eroded trust in the court.

Full post as published by Law Blog - WSJ.com on June 10, 2009 (boomark / email).