*1 CO., INC., A. T. COAL MASSEY CAPERTON et al. et al. 8, Argued March June 2009 Decided 08-22.
No.
Theodore B. Olson the cause for argued With petitioners. him the briefs were D. McGill, Matthew Amir C. Tayrani, Berthold, Jr., V. Robert B. Fawcett, David and E. Bruce Stanley.
Andrew L. the cause for Frey argued respondents. With him on the brief were Evan M. Tager, Dan Himmelfarb, A. III, Lewis F. Powell and Jeffrey Berger, D. C. Offutt, Jr.* *Briefs of amici curiae urging were reversal filed for the American Academy Appellate Lawyers by Wendy Lascher, Phares, Cole of Gloria C. Timothy Berg; J. Thomas for H. by and the American Bar Association Wells, Jr., Fisher, Sheehan; R. Keith and William F. for National Harris; by Pamela Lawyers
Association of Criminal Defense and for Pub- lic Citizen Allison M. Zieve and B. by Alan Morrison. amici curiae Briefs of urging affirmance were filed for of the State Troy King, Corey Attorney Alabama, by
Alabama et al. of General Maze, Newsom, Ayers, by Kevin C. General, and Marc James Solicitor Gebelein, Richard S. Delaware, Deputy Attorney by Chief General of John Attorneys respective for VK Suth- General their States as follows: ers Colorado, “Buddy” Bill McCollum James D. Caldwell of Florida, A Michael Louisiana, Utah; Cox and Mark L. Michigan, Shurtleff Hoersting Stephen M. Reid Competitive by for Center for Politics Cox; Bopp, Alan James Speech by for the James Madison for Center Free Jr.; and for Ronald D. C. Thomas Ludden. al. Rotunda et
Briefs of amici curiae were for the filed American Association Jus- *4 Weisbrod; S. by Robert Peck Les tice and for for the Brennan Center Jus- Sample, J. Aziz University James by tice at York School of et al. New Law Hebert, Huq, Ryan, Malloy; J. Gerald Paul S. and Tara for the for Center Sandstrom; Karl J. by Accountability et for the Political al. Committee Kolb, F. Polubinski Daniel Edmund Development by al. for Economic et III, Toscano; B. Thomas and David by for the Conference of Chief Justices Patton, Jr.; Sehotland, Phillips, Roy George T. At R. A and for Justice Wydra; Elizabeth B. of by Supreme et al. for the Court the State Stake Gay Tully; for Ten Phelps Kevin Richard Esmond by of Louisiana and Wright; and J. Patrick by Justices and Former Chief and Justices Current Wiggins K. and J. Charles and Justices Chief Justices for Former Mark White. Kennedy of the Court. delivered opinion
Justice of West Vir- case the In this Supreme Appeals which had entered trial court reversed judgment, ginia case, and heard the verdict of million. Five $50 jury justices is presented the vote to reverse was 8 to 2. The question Amend- Due of the Fourteenth Process Clause whether in the ment violated when one of the justices majority the motion was denied recusal motion. The basis for ex- in an had received contributions justice campaign of, the efforts from, amount and traordinary through found and of the corporation chairman officer board principal damages. liable for the are standards
Under our there precedents objective actual bias on the when “the recusal require probability too to be constitu- decisionmaker high part Larkin, tolerable.” Withrow U. S. tionally (1975). that, those we find all Applying precedents, recusal. case, circumstances of this due process requires I In 2002 a returned verdict jury West August Virginia its affili- that found A. T. Coal Co. and respondents Massey (hereinafter misrepresen- ates liable for fraudulent Massey) concealment, and interference with tation, existing tortious The jury petitioners Hugh contractual relations. awarded Harman Mining Harman Development Corp., Caperton, (hereinafter Caperton) Coal Sovereign Sales Corp., damages. sum million compensatory punitive $50 Massey’s post- In the state trial court denied June 2004 award, the damages trial the verdict and challenging motions utter acted in “intentionally disregard that Massey finding destroyed [Caperton’s] rights ultimately of [Caperton’s] because, analyses, after cost-benefit conducting businesses it was in to do so.” its financial interest concluded [Massey] Mas- March 2005 the court denied In trial 32a, App. 10(p). ¶ aas matter of law. sey’s judgment motion
873 Don Blankenship Massey’s chairman, chief executive officer, and After the president. verdict but before the ap- its West held 2004 Know- Virginia judicial elections. peal, West would ing Appeals Virginia Supreme case, in the to consider decided appeal Blankenship sup- an who attorney Justice sought McGraw. port replace Justice McGraw was candidate for reelection to that court. The who him Brent attorney sought replace Benjamin.
In the $1,000 addition contributing maximum statutory committee, Benjamin’s donated al- campaign Blankenship most million to “And For The Kids,” $2.5 Sake Of The a polit- ical § under 26 organization § formed U. C. 527. 527 S. organization opposed McGraw supported Benjamin. (2008)
223 624, 700, W. Va. S. 2d 223, E. 299 (Benjamin, J., Acting C. concurring). Blankenship’s donations ac- counted for more than two-thirds of total funds it raised. 150a. This was not
App. all. Blankenship addi- spent, tion, $500,000 over just independent expenditures —for direct and letters mailings donations as well as soliciting television and newspaper advertisements —“‘to . . support. ” Id., Brent 184a, 186a, at 200a Benjamin.’ Blank- (quoting state financial enship’s disclosure bold campaign filings; type- omitted). face
To some provide Blankenship’s $3 million in perspective, were than total contributions more amount all spent by other and three times Benjamin supporters amount Id., committee. at 288a. spent by Benjamin’s own Caper- ton million contends than Blankenship spent $1 more total amount committees both spent by campaign candidates combined. Brief for Petitioners 28. 382,036 (53.3%), won. He received votes
Benjamin (46.7%). 223 at 334,301 Va., McGraw received votes W. 2d, J., concurring). S. E. C. (Benjamin, Acting 2005, before
In filed its Massey petition appeal October court, in West moved to Virginia’s disqual- highest Caperton *6 Benjamin ify and Process Clause under the Due now-Justice Virginia Conduct, on the of based Code Judicial West by campaign Blankenship’s involvement. caused conflict Benjamin April indi- 2006. He denied the in motion Justice accompany- “carefully and he the bases that considered cated proffered by “no ing But he found the movants.” exhibits objective ... that this Justice has bias information to show any prejudged against litigant, that this Justice has for or litigation, comprise or that which this this Jus- the matters anything impartial.” App. fair 336a- tice will be but and Massey petition appeal In filed its December 337a. Virginia challenge jury the adverse verdict. West granted Appeals Supreme review. Court of that reversed the million ver- $50 In November 2007 court majority opinion, by against Massey. The authored dict Benjamin joined Davis and Justices then-Chief Justice Maynard, “Massey’s that conduct warranted the found type judgment Id., in this case.” at 357a. It rendered independent grounds— nevertheless, two reversed, based on in a contract clause contained first, that forum-selection Massey party not a the suit in West Vir- which was barred judicata ginia, res the suit due to an and, second, that barred Massey party. judgment Id., not a to which was out-of-state stating “major- that the dissented, at Stareher 345a. Justice wrong.” ity’s morally legally opinion Id., at 420a- accusing majority Albright dissented, also Justice 422a. introducing sweeping “misapplying ‘new law’ the law and may jurisprudence back to haunt well come us.” into our Id., at 430a-431a. rehearing, parties
Caperton sought moved for and the dis- justices qualification of the five who decided the of three Maynard appeal. surfaced of Justice vacation- had Photos Blankenship ing the case the French while Riviera with Maynard pending. Id., 440a-441a, 456a. Justice Caperton’s motion. other side granted recusal On the Jus- apparently Massey’s granted motion, recusal tice Stareher public his criticism role in Blankenship’s based the 2004 In his recusal elections. memorandum Justice Starcher to recuse himself Benjamin Justice as well. He urged noted bestowal of his “Blankenship’s personal wealth, political tactics, and have ‘friendship’ created cancer the affairs of Id., Court.” at 459a-460a. this Justice Benjamin declined Starcher’s and denied suggestion Justice Caperton’s recusal motion.
The court granted Justice now rehearing. Benjamin, chief selected capacity acting justice, Judges Cookman Fox replace recused justices. Caperton moved a *7 time third for disqualification, arguing that Justice Benjamin had failed to apply correct standard under West Virginia e., law —i. whether “a reasonable and prudent person, know- facts, these
ing objective would harbor doubts about Justice be Id., to fair and Benjamin’s ability impartial.” 466a, at 8.¶ also included the results Caperton public opinion poll, which indicated that over 67% of West Virginians doubted Justice would fair Benjamin be Justice impartial. Ben- refused to withdraw, jamin again that the noting “push poll” “neither was credible nor to reliable serve as sufficiently for Id., at basis an elected judge’s disqualification.” 483a.
In 2008 a divided court April reversed again ver jury dict, and it was a 3-to-2 again decision. Justice Davis filed a modified version of her prior opinion, two repeating earlier She was holdings. Justice joined by Benjamin and Fox. Justice joined Cookman, Judge Albright, by dis Judge “Not sented: is the only majority opinion unsupported by law, facts case but it is also existing fundamentally un fair. was neither Sadly, justice honored nor served Va., 685, 223 at 679 at 2d, W. S. E. majority.” also noted due dissent “genuine implications arising law” with under federal Justice respect Benjamin’s failure Id., 686, at 16, 679 285, to recuse himself. n. E. 2d, S. at n. 16 Aetna Ins. Co. Lavoie, In 475 (citing (1986); U. S. 813 Life Murchison, (1955)). re 349 133, S. 136 U.
876 writ of the petition later —a after month months
Four filed a Benjamin filed in this Court —Justice certiorari merits of majority He defended concurring opinion. rejected recuse. He well as his as decision opinion under in the case to his challenge participation Caperton’s law. Justice West Virginia Process Clause and the Due both “ sub- ‘direct, that he had no personal, reiterated Benjamin 702, atVa.,W. in this interest’ case.” stantial, pecuniary supra, Lavoie, 822). at Adopt- 2d, E. (quoting 679 S. concluded, he merely ‘appearances,’” “a standard ing West Virgin- than an invitation subject little more “seems of the framework day to the vagaries justice system ia’s —a to and stability yield supposition, in which predictability half-truths, and partisan manipulations.” innuendo, 707, 2d, E. at 306. Va., at 679 S. W. (2008). U. S. 1028 certiorari.
We granted II is a trial in a fair tribunal basic fair It is axiomatic “[a] supra, Murchison, at 136. of due process.” requirement relat- however, “most matters recognized, As the Court has to a constitutional not rise judicial disqualification [do] ing Institute, (1948). level.” FTC v. Cement *8 333 U. S. 702 Tumey Ohio, subject case the The early leading (1927). stated that “matters There, the Court 273 510 U. S. interest, remoteness of bias, state policy, of kinship, personal dis- merely to be matters legislative seem would generally Id., at 523. cretion.” Tumey Due the Process Clause concluded
The rule that must recuse judge the common-law incorporated substantial, direct, “a personal, pecuni- he has himself when Ibid. This rule reflects the maxim interest” a case. ary cause; in his own be a judge man is allowed that “[n]o and, bias his would certainly judgment, his interest because his The Federalist corrupt integrity.” not improbably, 1961) (J. (J. Frank, see Dis- Madison); ed. 10, No. 59 Cooke p. (1947). Yale L. J. 611-612 Judges, qualification rule, this for “disqualification bias or Under prejudice those matters were not left to statutes and permitted”; judi- supra, Lavoie, at 820; IV, codes. see also Part cial infra codes). bias or (discussing judicial Personal prejudice would be sufficient basis “alone for imposing constitu- Lavoie, under tional the Due requirement Process Clause.” supra, at 820.
As new have problems that were not emerged discussed law, however, at common the Court has identified additional which, instances as an matter, objective require recusal. are
These circumstances “in which teaches experience of actual bias the on the probability of the part judge decisionmaker is too to be high constitutionally tolerable.” Withrow, S., U. To the place present case two context, instances proper where Court has required recusal merit further discussion.
A The first involved the emergence local tribunals where had a financial interest outcome of a case, the interest although was less than what would have been considered or direct at personal common law. Tumey.
This was addressed in problem There, (with of a had the village sit as a mayor authority no those try accused of a state law jury) violating prohibit- ing possession alcoholic Inherent in this beverages. structure were First, two conflicts. potential mayor re- ceived salary supplement performing judicial duties, funds for that compensation derived from the fines assessed in a No fines case. were assessed upon acquittal. received a thus mayor-judge salary supplement only
if he convicted the S., defendant. U. at 520. Second, from criminal were sums fines to the deposited village’s fund for treasury general village improvements repairs.
Id., at 522.
878
The Court held that the Due Process Clause required dis- “both because of direct qualification mayor-judge’s] pe- [the in interest the cuniary outcome, and because his official to motive to convict and the fine finan- graduate to the help Id., the needs of It village.” cial so held despite that are who “[t]here doubtless would not observing mayors allow as such consideration in each case affect $12 costs to Id., their it.” at 532. The Court articulated judgment the controlling principle: which
“Every would offer a procedure possible tempta- to tion the man as a average the burden forget defendant, convict the or which proof required him lead not to nice, hold balance clear and might accused, true between the State and the the lat- denies of law.” Ibid. ter due
The Court was thus concerned with more than the tradi- tional common-law direct interest. prohibition pecuniary It was also concerned with a more of inter- general concept that ests tempt adjudicators neutrality. disregard This concern with conflicts from financial resulting incen Monroeville, elaborated Ward v. tives was U. S.
(1972), which invalidated a conviction in another mayor’s Monroeville, court. In unlike Turney, mayor received no money; instead, the fines the assessed went mayor town’s general held that fact “[t]he fisc. in the
mayor directly [in shared fees costs did Tumey] S., not define the U. of the at 60. The limits principle.” ” “ instead, on the principle, ‘possible temptation’ turned “executive mayor might face; mayor’s responsibilities to maintain finances make him village may partisan high from mayor’s level of contribution those finances] [to Ibid. in another the Court reiterated case court.” As as “the stake need not be direct or Term, financial [judge’s] Gibson Tumey.” Berry as it to be in positive appeared (1973) (an administrative hill, 411 U. S. board com- *10 a optometrists had pecuniary interest of “sufficient posed could so that it over a preside substance” hearing against competing optometrists).
The Court in Lavoie further clarified the reach of the Due a Process financial regarding Clause interest in a judge’s There, case. a had cast the justice vote on the deciding Ala- to bama Court a award Supreme uphold punitive damages an insurance for bad-faith refusal against company to a pay At time of his vote, claim. was the justice lead plain- in a nearly tiff identical lawsuit in Alabama’s lower pending vote, surmised, courts. His this Court deciding “undoubt- ” ‘raised the stakes’ for the insurance edly defendant in the S., suit. 475 at 823-824. U. justice’s that
The Court stressed it was “not to decide required Id., in fact justice] whether was influenced.” at [the constitutional proper is “whether inquiry sitting then case before the Court Supreme Alabama ‘“would a offer . . . to . possible temptation . . average judge him not hold nice, lead the balance clear and true.”’” Ibid, supra, Monroeville, 60, at in turn (quoting quoting Turney, supra, at 532). The Court underscored “what or kind of interest is sufficient to degree disqualify from ‘cannot be defined with sitting 475 U. precision.’” S., Murchison, 136). In (quoting S., 349 U. at the Court’s it view, however, was that the have an test important objec- tive component.
The Lavoie state-court proceeded distinguish case, interest in the which recu- justice’s particular required sal, from that were not a interests constitutional concern. instance, conceivably For “while justices might [the other] have had a interest” due to their pecuniary slight potential in a class-action suit their own insurance membership against “ interest ‘too remote insubstantial companies, S., 475 U. at 825- violate the constitutional constraints.’” Jerrico, Inc., Marshall 446 U. S. 826 (quoting (1980)).
B requiring instance was not The second recusal that dis- emerged contempt law criminal con- cussed at common pecuniary had no interest in the case but text, where challenged arising partici- because of from his conflict pation proceeding. an earlier This Court characterized “ proceeding (perhaps pejoratively) that first as ‘one-man ” *11 grand jury.’ Murchison, S., 349 U. 133. at proceeding, by provided first a law,
In that and as state judge examined to witnesses determine whether criminal brought. peti- charges judge be should The called the two petitioner questions, him. tioners before One answered but judge charged per- found him untruthful and him with jury. ground declined The second to answer on the that he permit. him, did not have counsel with as state seemed law to charged judge contempt. judge pro- The him with The try petitioners. to Id., ceeded and convict both at 134-135. grounds This Court set aside the convictions that the judge stage a had conflict interest at the trial because of by participation charge his earlier followed his decision required disqualification. The Due them. Process Clause general The man Court recited the rule that “no can be a judge adding permitted in his own that is case,” “no man try Id., cases where in he has an interest the outcome.” at disqualifying 136. It criteria “cannot noted that the be de- precision. relationships fined with Circumstances and must prior be Ibid. These circumstances and the considered.” “Having relationship required part [the been a recusal: grand judge very jury] process be, one-man a cannot in the things, wholly nature of disinterested the conviction or acquittal Id., at 137. That is because of those accused.” impossible practical “[a]s a it is difficult if not matter for a place judge what himself from the influence of took free ‘grand-jury’ Id., at in his session.” 138. secret distinguish careful to The cir- Murchison Court relationship from where the Con- and the those cumstances stitution would not require recusal. It noted that is “more a single-judge grand jury of the part accusatory than an ordinary lay grand juror,” and “adjudi- cation trial by judge committed in contempt [a judge’s] court cannot be open presence likened to the proceedings Id., here.” judge’s prior with the relationship defendant, as well as information from the acquired prior was of critical proceeding, import. Mayberry
Following Murchison the Court held in v. Penn- sylvania, 400 U. S. 466 (1971), “that by reason of the Due Process Clause of the Fourteenth Amendment a defend- ant criminal contempt be proceedings should given pub- lic trial before a other than the one reviled contemnor.” The Court reiterated that this rule rests on the relationship between the the defendant: “[A] vilified as was this judge, Pennsylvania judge, necessarily becomes embroiled in bitter running, controversy. No one so slandered cruelly likely maintain calm detach- Id., at 465. ment for fair necessary adjudication.” Again, the Court considered the specific circumstances *12 presented by the case. It noted that “not every attack on a . . . Ibid. him from disqualifies sitting.” The Court Ungar Sarafite, distinguished the case from U. S. 575 (1964), in which the Court had “ruled that a chal lawyer’s lenge, though ‘disruptive, recalcitrant and com disagreeable was still not ‘an mentary,’ attack insulting upon integrity of the judge such carrying potential for bias as to require Mayberry, supra, disqualification.’” at 465-466 (quoting Ungar, supra, 584). at is an inquiry one. objective The Court asks not whether the judge .is subjec actually, biased, but tively whether in his average judge position neutral, to be or whether “likely” there is an unconstitu tional bias.” for “potential
Ill Based on described in these we turn principles cases issue before us. This arises in problem the context elections, in the framework not presented prece- judicial of we have reviewed and discussed. dents contends that role in Blankenship’s pivotal get- Caperton created a in- constitutionally Justice elected Benjamin ting or actual bias. not bribe Though probability tolerable influence, Justice would nevertheless feel criminal Benjamin his ef- a debt gratitude Blankenship extraordinary him elected. claims, forts That get temptation, Caperton inherent in is as human nature as was the conflict strong Turney and Monroeville when a confronted (or the city) benefited from de- mayor-judge financially conviction, as well as the fendant’s conflict identified Mayberry Murchison when a was the of a object defendant’s contempt. was
Justice careful to address the recusal Benjamin mo- tions and his reasons on his view of the con- explain why, standard, In disqualification order. four trolling issued of the course he separate opinions during appeal, no actual been bias had established. He explained why no found basis for recusal because failed to Caperton provide information,” evidence” but “objective “objective merely 336a, belief” bias. 444a- App. 337a-338a, “subjective any 445a. Nor could actual conduct or ac- anyone “point could on which be termed tivity part ‘improper.’” [his] 2d, words, at In Va., W. E. other based S. facts con- Justice presented by Caperton, Benjamin his search into actual motives and inclina- ducted probing to be tions; and he found none We do not improper. ques- findings tion his subjective impartiality propriety. whether there Nor do we determine was actual bias. of our tradition re- principles legal
Following accepted functions, of judicial specting proper performance judges *13 motives and subjective into their purposes often inquire a case. This not course of does mean deciding the ordinary one. “The work of is a deciding the cases simple inquiry courts throughout in hundreds of the land. on every day goes one might suppose, would judge, easy find it Any describe which the he had followed thousand times and could be farther from Nothing more. the truth.” B. Car- (1921). The the dozo, Nature of Judicial Process 9 The into that inquires reasons seem judge to be leading Precedent and stare decisis and the text result. particular of and the law and the purpose Constitution; and logic schol- and and common arship experience sense; and fairness and disinterest are the neutrality among factors at work.
To coherence to the bring process, to seek for respect the often judgment, resulting judges reasons explain their conclusions and There rulings. are instances when the that often attends introspection this process reveal may that what had judge assumed be a proper, controlling fac- tor is the real one work. If the discovers that personal some bias or improper consideration seems to be cause of the decision or an to be actuating influence so difficult to that there dispel is a real of possibility undermin- think it ing neutrality, judge may necessary consider from the case. withdrawing
The difficulties into actual inquiring bias, fact often one, inquiry private underscore simply the need for rules. objective Otherwise there be may no protection against a who adequate misreads simply or the real motives at misapprehends the case. deciding work own bias, into actual one judge’s inquiry then, is not the law can easily review, actual superintend though bias, disclosed, if no doubt would be grounds for relief. appropriate In reliance on lieu exclusive that personal or on inquiry, review of the appellate determination judge’s ac- respecting bias, tual the Due Process has Clause been implemented by standards that do not objective require proof actual bias. Turney, Mayberry, supra, S., at 532;
See 273 U. at 465-466; Lavoie, S., 475 U. at 825. In these defining standards whether, has asked “under a realistic appraisal psy- weakness,” tendencies and human chological interest *14 that the a risk of or prejudgment actual bias such “poses due must be if the forbidden guarantee practice Withrow, S., at 47. U. adequately implemented.” be the in this case. Not every turn to influence at issue We a creates a or by litigant attorney contribution campaign recusal, but this is of bias that a judge’s requires probability Mayberry, (“It is, at 465 S., case. U. an Cf. exceptional from attack on a that him course, every disqualifies supra, Lavoie, (some inter- 825-826 sitting”); pecuniary insubstantial’”). “‘too remote and We conclude ests are a of actual on that there is serious risk bias —based objective a with personal and reasonable perceptions person —when in case and stake had a significant disproportion- particular the on the case by ate influence funds placing raising the election when the case judge’s campaign directing on or imminent. centers the contribu- pending inquiry relative total tion’s size the amount of comparison contributed to the the total amount money campaign, spent election, in the and effect such contribution had apparent on the of the election. outcome this we conclude that
Applying principle, Blankenship’s efforts had in- campaign significant disproportionate on fluence Justice the case. Blan- placing Benjamin some million to unseat kenship $3 contributed incumbent with His Benjamin. him contributions replace eclipsed the total all spent by supporters amount other Benjamin 300% the amount by and exceeded cam- by spent Benjamin’s committee. 288a. claims App. paign Caperton Blankenship than more the total spent $1 million amount spent by of both committees candidates combined. Brief campaign for Petitioners 28. that
Massey while responds Blankenship’s support, sig- nificant, Benjamin’s did not cause In end victory. him, elected so of West did based people Virginia they than other efforts. Blankenship’s reasons many Massey state out but every major one, en- points newspaper, for Brief Benjamin. It Respondents dorsed also con- then-Justice McGraw cost tends himself election speech campaign, a during giving speech opposition Ibid. own its upon advantage. seized *15 raised similar Benjamin He
Justice arguments. asserted “the 2004 outcome the election due that primarily own] as well campaign’s message,” as McGraw’s [his “devas- ” in which he tating] speech “made a number of controver- claims which a sial became matter of statewide discussion in media, on the internet,
the
and elsewhere.”
Whether contributions Blankenship’s campaign were necessary sufficient cause of Benjamin’s is victory not like the Much inquiry. whether a proper determining judge what biased, is drives actually proving ultimately the elec to choose a torate candidate is a difficult particular endeavor, to a likely lend itself certain conclusion. This is par ticularly where, here, true as there is no procedure for judi cial and the sole trier of the factfinding fact is one accused Due of bias. an process requires into objective inquiry the influence whether contributor’s on the election under all offer the circumstances “would a possible temptation to the . lead . . . to . . him not to hold the average balance judge Tumey, supra, nice, clear true.” at 532. In an election 50,000 (382, 036 than votes 334, 301), decided fewer see Va., 2d, W. S. at 301, E. cam Blankenship’s to the total comparison contributions —in amount con paign well as as the tributed the total amount campaign, spent election —had influ significant disproportionate outcome. that electoral And the risk Blank ence bias is influence actual enship’s engendered sufficiently that “must be if the guarantee it forbidden substantial Withrow, is to be adequately implemented.” due at 47. supra, contribu the campaign between temporal relationship
The case of the is and the election, pendency tions, justice’s foreseeable, when cam It wras reasonably also critical. case would made, pending were contributions paign million adverse $50 elected newly justice. before be election, and the had been entered before the verdict jury state next once the step was the Appeals Supreme it became at dealt with motions. So trial court post-trial that, would recusal, absent Justice Benjamin once apparent cost donor’s $50 his biggest company review judgment quid pro quo there no of a allegation million. Although extraordi the fact remains that Blankenship’s agreement, a time when he had a were made at contributions nary man as no is allowed to stake in the outcome. Just vested of bias can arise cause, in his own similar fears be other man the consent parties when —without —a And this in his own cause. applying prin chooses *16 election there was here a seri the judicial process, ciple that Justice of actual bias ous, objective required Benja risk min’s recusal. an extensive search for did undertake Benjamin
Justice indicated, that is one just as we have But, step actual bias. also may standards objective require in the judicial process; can be proved. not actual bias exists or recusal whether or bar trial who have by judges sometimes “may Due process would do best to very weigh who their no actual bias and Mur- contending between parties.” scales of justice equally chison, at 136. The failure to consider S., objective 349 U. with recusal the imper- is consistent standards requiring find Blankenship’s significant We that atives due process. with the coupled temporal and disproportionate influence — case— election and pending between relationship “ ‘ ... to the temptation average a possible “offer[s] ’ ” nice, hold balance clear true.” not to ... lead him Monroeville, Lavoie, atS., at 825 U. (quoting S., 475 U. Tumey, 532). On S., at these ex- 273 U. 60, turn quoting treme facts the of actual probability bias rises to an unconsti- tutional level.
IV Our decision addresses an today extraordinary situation where the Constitution requires recusal. and its Massey amici predict various adverse will follow consequences from recognizing constitutional violation ranging here — from a flood of recusal motions unnecessary interference with elections. judicial We The facts now disagree. before us are extreme any measure. The parties no point other instance involving judicial campaign contributions that presents for bias potential comparable to the circumstances in this case.
It is true that extreme cases often test bounds es tablished legal principles, sometimes no administrable standard be available to may address the perceived wrong. it is
But also true that extreme cases are more likely to cross constitutional limits, this Court’s intervention and requiring formulation of objective standards. This is true particularly g., County e. when due process See, violated. Sacra Lewis, mento (1998) U. S. 846-847 (reiterating due prohibition "executive abuse of . . power .
which shocks the conscience”); id., con (Kennedy, J., curring) (explaining "objective considerations, including history are the precedent, of this controlling principle” standard). due process
This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconsti- “ tutional probability of bias that ‘cannot be with pre- defined *17 supra, supra, Lavoie, Murchison, cision.’” at 822 (quoting 136). at Yet the Court articulated an standard to objective the basic to a trial protect parties’ fair in a fair right tribunal. was
The Court careful the distinguish extreme facts of the cases from before it those interests that would not rise to g., supra, Lavoie, e. See, constitutional level. 825-826; Mayberry, supra, at 465-466; Murchison, S., 400 U. at 137; supra. more nothing we do II, In case also Part this
see has before. the Court done than what thereof, or lack of effects, it worth such, noting is
As an- the standards though decisions. Even prior Court’s to those similar in those cases raised nounced questions our today, after decision be asked might or Murchison with Monroeville That motions. flooded facts those standards to the extreme part due perhaps of capable applying Courts proved quite address. sought extreme to less situations. standards reforms also take into account judicial must One to eliminate even the appearance have implemented States in- every Virginia Almost State — West of partiality. Bar Association’s objec- the American adopted cluded —has and the ap- “A shall avoid impropriety tive standard: judge Model of ABA Annotated Code of impropriety.” pearance for American Bar see Brief Conduct, (2004); Canon Judicial Curiae Association as Amicus 29. The ABA 14, n. is “whether of Model test for appearance impropriety Code’s minds a perception create reasonable the conduct would ability judicial responsibilities out judge’s carry is impaired.” with competence integrity, impartiality see Va. Judicial 2A, Commentary; also W. Code Canon (same). (2009) Conduct, 2A, Commentary Canon also requires Conduct The West Code Judicial Virginia in a proceeding himself or herself “disqualify be reasonably ques which the impartiality might judge’s 455(a) (“Any jus § see SE(1); also U. S. C. tioned.” Canon shall United States of the tice, or magistrate judge, in which his impartiality any proceeding himself in disqualify 3E(1), Under Canon be reasonably questioned”). might whether an ob focuses on disqualification question “‘[t]he reason conduct judge’s produces assessment jective subjec not on the impartiality, judge’s able about question ex rel. State to act ability fairly.’” of the tive perception 47, Brown E. 2d 169, 174, Va. n. S. Dietrick, 191 W. *18 889 Liteky United States, 52, 9 (1994); n. see also 540, v. 510 U. S. (1994) (Kennedy, J., (“[U]nder in concurring
558 judgment) 455(a), § S. should be C.] U. if disqualified only [28 or that he she an aversion, it harbors appears hostility or of a kind that a disposition fair-minded could set person aside when the judging Indeed, dispute”)- some States re recusal based contributions similar quire campaign g., e. See, §§ those this ease. Ala. Code 12-24-1,12-24-2 3E(2) (2008). (2006); Conduct, Miss. Code Judicial Canon These codes of conduct serve maintain the integrity of the and the rule of judiciary law. The Conference of the Chief Justices has that the underscored codes are “[t]he principal safeguard against judicial abuses” that campaign threaten to confidence imperil “public fairness and in- of the nation’s elected tegrity judges.” Brief for Conference Amicus Curiae of Chief Justices as 4, This is a vital state interest: in our
“Courts, system, elaborate of law in principles the course of disputes. resolving power of a court prerogative this perform rest, function end, upon accorded to its respect judgments. The citizen’s for respect in turn judgments depends upon court’s absolute issuing probity. Judicial integrity is, in a state interest of the order.” consequence, highest Republican Party v. White, Minn. 765, S. U.
(2002) (Kennedy, J., concurring). for It is reason that choose may this States to “adopt recusal Id., standards more than rigorous due requires.” Bracy Gramley, 794; (1997) see also 520 U. S. the “constitutional floor” from ceiling set (distinguishing “by statute, common law, standards of the professional bar”). bench and
“The Due Process Clause demarks the outer bound- only judicial disqualifications. states, aries Congress free course, remain more standards impose rigorous than we here disqualification those find mandated judicial Lavoie, S., 475 U. at 828. Because the codes of ju-
today.” *19 re- more than due provide protection dicial conduct will be most over resolved disputes disqualification quires, con- resort the Constitution. of the Application without in will thus con- this case be implicated standard stitutional to rare instances. fined
[*] [*] [*] of of of West The Court judgment Supreme Appeals reversed, is and the case is remanded for further Virginia not inconsistent with this opinion. proceedings
It is so ordered. Roberts, Scalia, Chief Justice with whom Justice Alito Thomas, join, Justice and Justice dissenting. of sincere
I, course, share the concerns about majority’s fair, the need to maintain a independent, impartial judi- one to be But I fear that the that such. ciary appears —and than Court’s decision will undermine rather these promote values. two situations in
Until we have today, exactly recognized disqualifica- which the Federal Due Process Clause requires tion a financial interest in the of a when has judge: a defend- outcome of the and when the case, trying notions for of bias Vaguer ant certain criminal contempts. for never a basis disqualifica- or the of bias were appearance law our constitutional tion, prece- either common or under by legislation instead addressed dents. issues were Those or court rules. the Due Process Clause enlists
Today, however, aof “probabil- failure to recuse because to overturn a judge’s grounds disqualifi- Unlike established bias.” ity be defined lim- any bias” cannot cation, a “probability no guidance new “rule” way. provides ited Court’s
891 about when litigants recusal will judges be constitution- This will ally required. inevitably lead to an in al- increase biased, are legations judges however those groundless be. The end will result charges may do far more to erode confidence public judicial than an impartiality isolated fail- ure recuse in a particular case.
I There is “presumption honesty those integrity Larkin, Withrow v. serving as adjudicators.” 35, U. S. (1975). All take oath an judges the Constitu- uphold
tion and the law apply and we impartially, trust they Republican Party Minn. will live to this up See promise. White, (2002) U. S. J., concurring) (Kennedy,
(“We not, should even inadvertence, by ‘impute judges Bridges a lack of firmness, wisdom, or honor’” v. (quoting California, (1941))). 314 U. S. 273 252, We have thus iden- two tified situations which the Due only Process Clause of requires a when the disqualification has a judge: judge financial interest in the of case, outcome and when the is over certain of judge presiding types criminal contempt proceedings.
It is well a established that not over a judge may preside “direct, case in which he has a personal, substantial, pecuni Tumey Ohio, (1927). 510, interest.” ary v. 273 U. S. 523 is This principle relatively straightforward, largely tracks the common-law rule longstanding regarding judicial Frank, recusal. See of 56 Yale Judges, L. J. Disqualification (1947) (“The 605, 609 law of common ... was disqualification clear and a direct simple: judge disqualified pecuni else”). interest and for a ary For defend nothing example, he ant’s due are violated when is tried before process rights who for his when he judge “paid service convicts only Tumey, supra, Aetna 531; the defendant.” at see also Life Lavoie, Ins. (recusal Co. v. (1986) S. required U. clear in a related case “had the
when decision judge’s enhancing legal status and of both effect immediate case”); Connally Georgia, 429 of v. his own value settlement (1977) curiam). (per 245, 250 S.U. presides judge over may due when a violate also
It contempt from the defendant’s case that resulted a criminal Mayberry Pennsylvania, judge. hostility In v. towards (1971), steady directed stream defendant 400 U. S. through judge expletives ad at the hominem attacks subsequently trial. When that defendant was out the charged contempt, he we with criminal concluded that public given than the trial before a other be “should Taylor Id., 466; the contemnor.” at see also reviled one (a (1974) Hayes, 488, 501 who “become 418 U. S. had running controversy” with the defendant embroiled subsequently preside over that defendant’s crimi could trial). contempt nal emphasized in this area have also when the. decisions
Our require . does not recusal: Due Process Clause judicial qualification may questions “All not involve kinship, validity. per constitutional Thus matters of policy, bias, interest, sonal state remoteness would merely generally legislative seem to be matters discretion.” ey, supra, Lavoie, see also 523; Tum supra, at 820. exceptions
Subject to the two well-established described *21 judicial regulated questions are “com- above, of recusal professional of or the standards the bench law, statute, mon (1997). Bracy Gramley, 899, 520 U. S. and bar.” any given of are a number factors could case, In there “appearance” “probability” give of bias: rise or friend- to a experience, lawyer, prior employment ship party with a or speeches prior membership associations, clubs or writings, religious affiliation, and countless other considera- held that Due Process Clause re- have never tions. We recusal of any for these quires reasons, even though they could be viewed as presenting “probability bias.” Many state statutes recusal based on require or probability ap- of bias, but “that pearance alone would not be sufficient basis a constitutional imposing requirement under the Due supra, Lavoie, added). Process Clause.” at 820 (emphasis are, course, States free to broader recusal adopt rules than the Constitution requires every State has —but these —and are developments not continuously into Due incorporated Process Clause.
II In from this line departing clear between when recusal is constitutionally when required not, it is the majority repeatedly for an emphasizes need “objective” standard.
Ante, at 872, 877, 879, 881-888. is majority’s analysis “objective” that it does not into inquire Justice Benjamin’s or motives But the decisionmaking process. standard majority “probability bias” —fails to provide articulates — clear, workable for future At guidance cases. the most basic is level, it unclear whether the new probability bias stand- ard is limited somehow to financial elec- support judicial tions, applies judicial recusal more questions generally.
But there are other fundamental as well. questions With little from the help will now courts have to majority, determine:
1. How much is too much What money level of money?
contribution or rise to expenditure gives “probability of bias”? do How we determine whether a expenditure given whatl
“disproportionate”? Disproportionate 3. Are noncoordinated treated independent, expenditures
the same as direct contributions a candidate’s cam- out- independent What about contributions paign?
side candidate? groups supporting *22 litigant has contributed matter whether the 4. Does it large expenditures in connec- candidates or made other other tion with elections? if matter? What the amount in the case
5. Does issue dispute only employment $10,000 with were an this case plaintiffs only sought ifWhat non- at stake? the declaratory monetary injunction such or relief as an judgment? analysis change depending on the whether
6. Does disqualification judge sought is sits on a trial whose appeals supreme court, or court, state court? long probability of does the bias last? Does
7. How probability re- of bias diminish over time as the election judge plans matter to run Does it whether cedes? reelection? expenditure “disproportionately” large is 8. What if the industry physicians’ union, an association, trade made plaintiffs’ judge group, Must the recuse in or the bar? Must cases affect the association’s interests? all that party lawyer judge in all cases or recuse which group? Does matter how much it is a member of that litigant to the association? contributed ideological or issue if involves a social 9. the case What from than one? Must recuse rather a financial rights say, involving, if he has received cases “disproportionate” support abortion from feel individuals who sup- strongly issue? If side about either judges “tough help porter who are elect wants to in all criminal cases? crime,” recuse must “disproportionate” support draws 10. What if candidate group, religious, particular racial, ethnic, or other from particular importance issue of an the case involves group? pending party supporter not a to the if the What by the be affected his interests will but case, imminent *23 analysis apply sup- the decision? Does Court’s if the porter judge” the not in “chooses his but case, in some- else’s? one implicates regulatory What if the case a issue
12. that is of great importance party making expenditures, to the though no even he has direct financial interest the out- (e. g., challenge agency rulemaking come a facial to an or seeking agency’s jurisdiction)? limit a suit an judge’s vote 13. Must be outcome determinative in order process his nonrecusal constitute a due violation? process analysis underlying Does the due 14. consider merits of the suit? Does it matter whether the decision (or clearly right wrong) is aas matter of state law? if a supporter court
15. What lower decision in favor of the appeal, panel affirmed on the is merits on a with no gratitude” supporter? of “debt to the Does that “moot” process the due claim? judge against if the supporter many
16. What voted other cases? disagrees judge supporter’s What if the
17. with the mes- sage judge expressly or What tactics? if the disclaims support person? of this judges 18. we assume that elected Should a feel “debt of hos- tility” major opponents towards of their candidacies? judge involving recuse in
Must cases individuals or groups spent large money trying who amounts unsuc- cessfully to defeat him? independent judge’s If
19. there is review of a recusal deci- g., by panel judges, completely e. a sion, other this does foreclose a due claim? gratitude by newspa- a
20. Does debt of for endorsements pers, politicians, groups, give interest or celebrities also constitutionally unacceptable probability rise to a support How we bias? would measure such whether disproportionate? personal friendship close between Does
21. lawyer probability party give of bias? now rise to or campaign expenditures come Does it matter whether the 22. lawyer, attorney? party party’s If from from a involving every recuse in case must attorney? vary what is unconstitutional from State to State? Does particular history expensive ju- have a if States
What elections? dicial *24 “objective” analyze majority’s test, the do we the
24. Under process through per- due issue the lens of a reasonable lawyer, judge? a son, reasonable or reasonable analysis? play does in What role causation this 25. conflicting signals point. on this The ma- sends “[wjhether Blankenship’s campaign jority asserts necessary were a and sufficient cause of contributions Benjamin’s victory proper inquiry.” Ante, is not the opinion, majority in the at 885. But elsewhere the con- apparent such contribution on the siders “the effect had ante, election,” of the at and whether the outcome litigant judge “choos[e] in his own has been able to the pertinent If cause,” ante, 886. causation is a factor, expendi- the how do we know whether contribution or any effect on the the ture had outcome of election? won a landslide? What if the What if opponent’s missteps? primarily won of his because analysis probing less for incumbent 26. Is the due judges advantage typically great have a in elec- —who challengers? for tions—than pending respect case be with How final must the
27. example, only if, interest? What contributor’s certify appeal the court class issue on is whether should just required plaintiffs? recusal if the issue in as Is liability? pending case were ultimate implicated Which are this Must 28. cases doctrine? pending Reasonably be at the time of the
case election? likely brought? important to be What about an but un- anticipated shortly case filed after the election? impute probability party When do we
29. of bias from one corporation get Does a contribution another? from a imputed its executives, and vice versa? Does a con- expenditure by family get tribution or one member im- family puted to other members? nonpartisan? if the election
30. What is What if the elec- just yes-or-no is tion vote about whether to retain an incumbent? type support disqualifying?
31. sup- What ifWhat porter’s expenditures registra- are used to fund voter get-out-the-vote tion efforts rather than television advertisements? expenditures Are
32. contributions or in connection with a primary aggregated general with those election? supported ifWhat the contributor a different candidate primary? gratitude? Does that dilute the debt of procedures challenge What must be followed to a state *25 judge’s May Caperton only failure recuse? claims be may raised on direct review? Or such claims also be brought § in federal district court under 42 1983, U. C.S. person deprived right a
which allows of a federal a §1983 damages? state official to sue for If claims are proper judge? available, who are the defendants? The The whole court? The clerk of court? already
34. What about state-court cases are closed? losing parties the in Can those cases now seek collateral § relief federal district court under 1983? "Whatstat- applied
utes of limitation should be to such suits? remedy? proper Caper- is the After a 35. What successful parties motion, ton must start from the scratch before judg- court lower the courts? of the lower Is any part ment retained? if he waits a waive his due claim Does litigant
36. claim only the to raise Or would until after decision it? or vote actions decision, be after when judge’s ripe a bias? suggest probability to the with entitled to discovery respect Are parties
37. recusal decision? judge's
38; do recuse, we apply If fails to a erroneously
harmless-error review? he to the allegation Does the judge get respond hands biased, solely is his reputation probably to the case? the parties if a claim as of a part settle Caperton 40. What parties leave the of the Does that broader settlement case? his with no way salvage reputation? come to uncertainties that quickly These are few only will encounter others surely mind. and litigants Judges deci- to, to, or wish apply majority’s when are forced they circumstances. Today’s requires sion different opinion act as political federal judges simultaneously state and election?), X econo- candidate win scientists did (why (was and psy- mists the financial support disproportionate?), (is to be a debt of there chologists likely gratitude?). discernible to formulate inability “judicially
The Court’s the rec- counsels against standard” strongly and manageable See Vieth Jube- constitutional right. of novel ognition (2004) (holding lirer, (plurality opinion) U. S. claims based nonjusticiable political gerrymandering J., concur- standards); id., lack workable (Kennedy, (“The stand- failings many proposed in judgment) ring . . . imposes the burden gerrymander for measuring ards *26 to consider The need improper”). make our intervention why the helps explain other questions and countless these jurisprudence constitutional law this Court’s common
899 have never required disqualification such vague grounds as or of bias. “probability” “appearance”
Ill A credit, To its the Court seems to that the inher- recognize boundless nature of its new ently rule But poses problem. answer only is that the majority’s case is an present “ex-
treme” there one, so is no need to worry about other cases. Ante, at 886-887. The Court repeats this over and point ante, (“[T]his See at 884 over. is an case”); exceptional ante, at 886-887 ante, (“[o]n these extreme facts”); 887 (“Our decision an addresses today situation”); extraordinary (“The ibid. facts now before us are extreme meas- by any ante, (Court’s ure”); at 890 rule will “be confined to rare > instances”).
But this is so much just whistling past graveyard. that Claims have chance little of success are nonetheless fre- filed. The rate success quently certiorari be- petitions fore this Court 1.1%, and approximately yet the previous “Caperton 8,241 Term some were filed. one of the Every §1988 motions” or appeals actions will claim that is biased, or biased, probably bringing into judicial And all system future disrepute. litigants really will assert that their case is the most extreme thus far.
Extreme cases often test the bounds of established legal There is a cost to principles. the desire to cor- yielding case, rect extreme than rather to the adhering prin- legal That cost has been demonstrated so ciple. often it is in a “Hard cases make bad captured legal aphorism: law.” decisions in United tale of our cautionary Consider Halper, States v. Hudson v. United (1989), S. 435 U.
States, (1997). U. S. we have held Historically, the Double Clause to criminal Jeopardy only penal applies g., Helvering Mitchell, e. ties, See, not civil ones. Halper, (1938). 391, 398-400 But in held
U. S. civil if that a could violate the it were “over- penalty Clause *27 900
whelmingly damages defendant] the disproportionate [the S., resulted in “clear 490 U. at has caused” and a injustice.” that would not be 446, 449. We this acknowledged inquiry but that an “exact the assured it pursuit,” litigants case, “a rule rare the such announcing was for the case only Id., id., 453 449; the one before us.” at see also at as (Ken- stress, I con- concurring) would J., (“Today’s holding, nedy, an rule that the nature of in objective grounded stitutes ease”). the facts of the particular the sanction in Hudson later, we certiorari eight granted Just years about the double concerns wide of novel variety “because in U. S., claims the wake of 522 Halper.” spawned jeopardy ibid., n. 4. The claim we had recog- at see also novel 98; out so all, turned not be “rare” after nized Halper test we “overwhelmingly dispro- adopted case — 101- S., 522 unworkable.” U. “proved portionate” —had omitted). (internal We thus abandoned marks quotation our considered” “deviation from Halper rule, “ill ruing S., at 522 U. jeopardy double longstanding principles.” one Today, vu is to make swoon. déjá enough clear, con- from majority again departs longstanding “extreme” case in- rule to accommodate an stitutional I be- amounts of money. volving “grossly disproportionate” well, decision as when lieve we will come this regret Caperton variety courts are deal with a wide forced to or “most extreme” “most motions, each title of claiming disproportionate."
B is an extreme so that this And is the Court convinced why amount large It Don Blankenship spent case? is true that this But point with this election. money connection $1,000 than Other enough: cannot be strongly emphasized Justice Benjamin from Blankenship, direct contribution was money control over how this had no his campaign to develop precise to great lengths spent. Campaigns go An or ham-handed ad insensitive and strategies. messages an campaign independent third distort party might cause backlash campaign’s message candi against date, though even candidate responsible Valeo, (1976) Buckley ads. See cu U. (per S.
riam) (“Unlike contributions, such independent expenditures well little may assistance provide to the cam candidate’s and indeed paign may prove counterproductive”); see also *28 Brief for Conference of Chief Justices as Amicus Curiae 27, n. 50 judicial of in (citing examples elections which inde backfired and hurt pendent expenditures candidate’s Blank campaign). majority repeatedly characterizes as enship’s “contributions” or spending contribu “campaign tions,” ante, at 872, 873, 884-887, 889, but more it is accurate to to refer them as Blank “independent expenditures.” “contributed” enship $1,000 only Benjamin campaign.
Moreover, Blankenship’s independent do not expenditures appear “grossly disproportionate” compared other such in this election. “And for expenditures very the Sake of the Kids” —an that received independent group approximately two-thirds of its from $3,623,500 funding Blankenship spent— in connection with the 624, 704-705, 223 W. Va. election. (2008) 223, 303-304
679 S. E. 2d J.,C. con (Benjamin, Acting But curring). were also large independent expenditures made in of Justice support Benjamin’s “Consum opponent.
ers for Justice” —an that received independent group large contributions from the plaintiffs’ spent approximately bar — Id., in 704, 41, 2d, $2 million this at n. E. at race. 679 S.
303, 41. n. And has Blankenship made large expenditures in elections, with several West previous connection Virginia which undercuts that his elec any notion involvement this tion was to influence the “intended outcome” particular Brief for Petitioners 29. pending litigation.
It is also far from that Blankenship’s clear expenditures won affected outcome this election. Justice Benjamin 46.7%). (53.3% to ob- Many a comfortable 7-point margin doomed Benjamin’s opponent servers believed Justice candidacy by well-publicized speech giving that made his allegations; speech described this curious several “ ” ‘deeply disturbing’ Va., 223 W. as and worse. media local Benjamin’s at 38, 2d, 302, 679 S. E. n. 38. Justice n. at give participate opponent also refused interviews major Virginia newspapers All but one of the West debates. Benjamin Benjamin. just might Justice Justice endorsed Virginia thought the voters of he won because West have opponent. than ma- be a better his Unlike the would say any degree certainty jority, with that Blank- I cannot “cho[se] enship Ante, in his own cause.” Virginia give the voters West more credit than I would that.
[*] [*] [*] cliché, an but cure than It old sometimes the is worse “probability I are where a the disease. am sure there cases step prudent judge aside, but of bias” should lead Maybe judge fails to do this is one of them. But I be- so. opening recusal claims under lieve that the door to the Due *29 “probability amorphous bias,” Clause, for an will Process system disrepute, bring judicial our into undeserved itself people and diminish the confidence the American hope wrong. integrity I of their courts. I am fairness and respectfully I dissent. Scalia,
Justice dissenting. purpose principal of this exercise of its cer- The Court’s jurisdiction clarify the law. this tiorari is to See Court’s painfully dissent makes Rule 10. As The Chief Justice’s today’s principal consequence decision is to clear, cre- respect point uncertainty of law vast with that can ate (at least) litigated be in all eases those States raised urged judges. upon This eourse was us on that elect their public’s grounds preserve the confidence in the that it would judicial system. Petitioners 16. Brief for opposite The will decision have the effect. What above public eroding judicial all else is confidence in the Nation’s system perception litigation just game, is the party lawyer play with the most resourceful can toit seemingly legal proceedings win, that our interminable are wonderfully self-perpetuating incapable delivering but justice. opinion real-world The Court’s will reinforce that perception, adding gambits lawyerly to the vast arsenal of Caperton what will come to be known as the claim. The adjudicating litigated— facts it relevant to will have to be governing and law it, likewise the which will be indetermi- years Many come, nate for if not forever. billable hours spent poring through campaign will be volumes of finance reports, many contesting more in nonrecusal decisions through every available means. respect Scripture:
A Talmudic maxim instructs with to the over, “Turn it and turn over, it for all is therein.” The Babylonian Talmud: Seder Nezikin, Aboth, Tractate V, Ch. (I. (footnote 1935) pp. Epstein
Mishnah 76-77 ed. omit- ted). Divinely inspired may text contain all the answers to earthly questions, but the Due Process Clause most as- suredly today quixotic does not. continues its quest right wrongs repair imperfections all all through quest Alas, the Constitution. cannot succeed— why wrongs imperfections which is some been have nonjusticiable. possible called worlds, In the of all best judges should sometimes recuse even where the clear com- prior require mands of our law do due it? Un- doubtedly. question, however, The relevant is whether we good imperfec- by seeking more do than harm to correct this through expansion tion in a of our constitutional mandate ungoverned any manner diseernable rule. The answer *30 is obvious.