Is the Door As Open as Roberts and Scalia Say It Is?

Per Justice Scalia's dissent in Caperton v. A.T. Massey Coal Co., Inc.,  (U.S., June 8, 2009), 39 States elect their judges. According to the Chief Justice, joined by Scalia, Thomas and Alito, and Justice Scalia writing separately, the majority in Caperton opened a barrel of snakes, not a can of worms, by using the Due Process Clause to strike down a decision by a West Virginia Supreme Court of Appeals' justice refusing to recuse himself in a case where a coal company's corporate executive gave an estimated $3 million in contributions to the election of the non-recusing jurist.

The facts are unquestionably bad. The corporate executive's company suffered a $50 million jury verdict against it. The executive decided to back a challenger for an open state supreme court seat, bankrolling him to the tune of $3 million (which included $2.5 million to a § 527 group called "And For the Sake of the Kids"). The challenger won by a relatively narrow margin (approximately 53% to 47%). When the appeal of the $50 million jury verdict made it to the state supreme court, the new justice refused to recuse himself and the court reversed the jury verdict by a 3-2 vote. (Recusal would have apparently led to affirmance by an equally divided court.) The Supreme Court majority did not question the state supreme court justice's subjective view of his own lack of bias, but held, "[o]n these extreme facts the probability of actual bias rises to an unconstitutional level" based upon an "objective standard."

The dissents forcefully assert that the national court system will be dealing with Caperton bias claims for many years to come. Per the Chief Justice: "The majority's analysis is 'objective' in that it does not inquire into Justice Benjamin's motives or decisionmaking process. But the standard the majority articulates – 'probability of bias' – fails to provide clear, workable guidance for future cases."

Whether this is simply one of those rare sui generis cases that will likely never be replicated in our lifetime, or whether the barrel of snakes has truly been unleashed, we'll just have to see.