Here’s the new rule:
Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – 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. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Ah. Good — glad that’s cleared up. But one is tempted to ask, how much of a “personal stake”? How “significant” or “disproportionate” an influence? How “imminent” must the case be? What are the appropriate metrics for stacking up the various factors in the last sentence?
The dissenters go down exactly that road, asking basically, how much is too much? Sure, maybe this case is clearly over the line. But there has to be a line somewhere, and where is it? As of tomorrow, Roberts argues, courts will be flooded with recusal motions claiming that some judge’s campaign contributions “went too far,” and they will have little to guide them. Here are a few questions Roberts poses:
1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?
2. How do we determine whether a given expenditure is “disproportionate”? Disproportionate to what?
3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? What about contributions to independent outside groups supporting a candidate?
4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?
5. Does the amount at issue in the case matter? What if this case were an employment dispute with only $10,000 at stake? What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?
6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?
7. How long does the probability of bias last? Does the probability of bias diminish over time as the election recedes? Does it matter whether the judge plans to run for reelection?
8. What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar? Must the judge recuse in all cases that affect the association’s interests? Must the judge recuse in all cases in which a party or lawyer is a member of that group? Does it matter how much the litigant contributed to the association?
9. What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue? If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases?
10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?
Roberts actually poses 40 of these questions, which he claims “quickly come to mind” — in reality, I suspect he had all four of his law clerks come up with 25 questions each, and he culled the best 40 from them, or something along those lines. đŸ™‚ But they are good questions, and there are no obvious answers from the majority opinion.
Once again, we seem to be in an “I know it when I see it” kind of situation. Not really the best way to run a judicial system.
Isn’t this just a simple case of opening up a field of law to further case-by-case development, which is precisely what the courts usually do? Time will tell, but I predict we won’t see a flood of this kind of litigation, if for no other reason than that lawyers have strong incentives not to ask judges to recuse themselves, and that elected judges will now (one hopes) be a bit more circumspect than Justice Benjamin was.
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p>I should add that I am an implacable foe–implacable!–of electing judges.
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p>TedF
Maybe … but in this case, is that just another way of saying “I know it when I see it,” or “shocks the conscience”?
We’ll have to see how the cases get decided. Maybe the courts will develop some hard-and-fast rules, maybe not.
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p>TedF
… this ruling a missed opportunity to “develop some hard-and-fast rules”. The absence of these ‘rules’ might indicate that ‘in the details’ there were more splits.
The court can only decide the case before it. It seems to me that the first case in a new area will always leave a lot of open questions. It would be a mistake for the court to try to answer questions that may arise in later cases without seeing what the later cases look like. This is how the common law process works.
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p>TedF
… but to rule that this comes down on one particular side and not the other and offering no clear distinctions as to why (except the word ‘exceptional’) is a missed opportunity to add clarity to the circumstances. Of course the clarity might be narrow to the circumstances of this case only and not a ‘set of rules’ per se, but I would hope that a case that makes it up to the SC would come out with clarified distinctions nonetheless.
Cass Sunstein has a new paper that may be of interest to you, Mr. Lynne. It’s called Trimming. He distinguishes various styles of adjudication. Well, neither of us is a judge, but if we were, is it possible I’d be a “minimalist” and you’d be a “trimmer”?
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p>TedF
Having read the abstract, I’d say I’m definitely not a trimmer. It looks like trimming is a sort of legal ‘Broderism’. I don’t mind taking definitive sides at all. It just seems to me that it is probably the case that the vast majority of cases that make their way ‘up the chain’ are either errors in need of correction, conflicts in need of resolution, or vagaries in need of clarification. This observation does not imply any sort of ‘middle of the road’-ism. Resultant clarifications or resolutions can rightly move far outside ‘the poles’ such as in Brown or even Miranda.
…of reasons judges shouldn’t be elected.
But is this a good way to get at that problem? Why isn’t it better either (a) to do nothing, thereby leaving it to the political branches to work out a solution to the essentially political problem of how to get judges on the bench, or (b) go whole hog and declare judicial elections generally to violate due process?
Such as stocks, partial ownership of businesses, and so forth? As far as I know even Supreme Court Justices have a lot of investments that could cloud their judgment. Money’s a funny thing.
… are legalized bribery. It’d be hard to see any contribution as anything but illegal absent a campaign. The prohibitions are much less gray. There are rules that are prosecutable for such conflicts, whereas the gray area opened up by campaign funds creates an opportunity for doing something technically legal that would be illegal under other circumstances.
because the point of the SCOTUS is to step in when political process doesn’t protect individuals w.r.t. the Constitution, no? I agree there is a political problem here, but that political problem is manifesting itself in a way where an individual’s 14th amendment right is violated.
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p>Am I craxy?
Problem is, that assumes the answer to the question. Of course, if someone’s 14th amendment rights have been violated, the courts should step in. But whether these circumstances constitute a violation of due process is precisely the question to be answered.
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p>Consider the recent case of Vieth v. Jubelirer, which held “political gerrymandering” cases (i.e. cases in which districts are drawn to pretty much guarantee a win by one political party) to be “non-justiciable” in most cases. The claim was that such districts violate the 14th Amendment. The conclusion was that the Court could not intervene. Here’s the last bit of Kennedy’s concurring opinion in that case, which sort of sums up the bind courts find themselves in in this kinds of situations:
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p>
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p>Shorter version: this gerrymandering was really bad. But I can’t figure out how to fix it, so I vote that we don’t intervene. But maybe someone smarter than me will figure out a way to fix it down the road, so I’ll leave the door open.
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p>I’d call that less-than-heroic judging. But then, I’ve never been a huge fan of Justice Kennedy.
Justices get to first decide whether the case is valid for them to take AND THEN if it is decide the merits. I actually tend to agree with Kennedy on this one. The court can insist districts be equitable in size using just the 14th amendment (and I believe it has), but barring a specific federal law to enforce upon the states, how the districts are shaped remains a political question.
Read his entire opinion. Kennedy is saying that he thinks political gerrymanders should be justiciable, except that he can’t figure out what standard the courts should impose. So, he says, until someone comes up with a workable standard, the courts will have to keep away.
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p>It’s ridiculous. Either the case is justiciable, or it isn’t. If it isn’t, just say so — join on with Scalia et al. and hold that these cases are political questions. If it is, then join the four “liberals” and try to work out a standard. This middle road that Kennedy often tries to steer is completely unhelpful.
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p>And I don’t understand your point about “a specific federal law to enforce upon the states.” These are constitutional cases, not statutory cases. The reapportionment (one-person-one-vote) cases were predicated on 14th Amendment violations; there was no federal statute on that subject. The 14th Amendment was at stake in Vieth as well.
One-person-one-vote IS a constitutional issue as I said. It would take specific laws to require various other stipulations such as racial distribution, compactness, etc. which are not addressed by the Constitution. What I was trying to say is that absent such laws, the only thing the court can enforce is equitable numbers, at least as I read the Constitution.
1P1V wasn’t thought to be a justiciable constitutional issue until the Supreme Court said it was in Baker v. Carr in 1962. And you’re wrong about “specific laws” being needed to address issues like racial distribution and compactness. Ever since Shaw v. Reno in 1993, the Court has been in the business of holding certain districts unconstitutional because they “go too far” in terms of racial gerrymandering to create majority-minority districts.
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p>The Constitution says what the Supreme Court says it says. As of now, it says that (1) districts have to conform reasonably closely to one-person-one-vote, and (2) they can’t “go too far” in an effort to create majority-minority districts. It also may say that (3) they can’t go too far in creating political gerrymanders — but we’re not sure, because Justice Kennedy can’t make up his mind.
Politicians don’t go around to the best law schools and buttonhole the best and brightest lawyers for judgeships. The just look for some lawyer that they are beholden to. So the judges are just elected by the politicians.
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p>Big diff?
Maybe, maybe not.
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p>But this decision is definitely a good way to make some multi-millionaire think twice about investing his money in scheme to stack the courts in his favor.
no judge should ever be required to recuse themselves, although it might be a polite thing to do if you’ve got a strong sense of ethics? I suppose state laws could establish parameters for mandatory recusals, answering some if not all of Roberts’ objections.
in which due process requires recusal: personal financial interest is one, and situations in which the same person is both the charging and the adjudicating authority is the other. Both are laid out in some detail in Kennedy’s majority opinion.
Roberts has two characteristics that are at war here:
So what happens when, here, there’s a tension between the two?
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p>Why the first wins out. It’s a shut out: 40-0.
…though ultimately it is too early to say that it is a “something of a bombshell” decision. As the remainder of David’s post points out, there are a LOT of problems with this decision, and the “I know it when I see it” point is quite apt. Justice Roberts’s dissent was rather clever, I thought, even though I (think) I agree with the ultimate result here. (I’m a big critic of judicial elections, for one thing).
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p>The reason I don’t think this will be a bombshell, ultimately, is because of the very problem of indeterminacy. There are virtually no solid guidelines to lower courts in this decision, which lead me to think that while this could spur a wave of litigation, it is more likely that lower courts generally will ignore this vague (non-)standard in Caperton and only address the most egregious cases of non-recusal.
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p>After all, it seemed Kennedy used the phrase “extraordinary case” or “extraordinary situation” about a dozen times in his opinion, suggesting that this decision might have a limited shelf-life, or at least only used in the most blatantly obvious cases of “buying” votes that only serve to make the judiciary look bad. It’s more of a situation of “sweeping under the rug” a particularly bad case in order to preserve the judiciary’s institutional reputation more generally.
Ah, the old “flooded courts” gambit — a modern classic. I can’t imagine Thurgood Marshall being more concerned with a rash of recusal motions than with someone being cheated out of a fair trial.
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p>(I imagine Roberts as Tim The Enchanter: “Answer me these questions for-tee, ere the other side ye see.”)
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p>A handful of the 40 questions fall into the category of due diligence, and the rest paint a picture of a guy looking for every possible way to circumvent the prima facie nature of what should have been a 9-0 decision. And why? To guarantee the right of every wealthy or powerful person to his/her bought-and-paid-for court decision?