You know it when you see it
By Following up on Scott’s post, Potter Stewart was famously derided for describing “obscenity” as something that can’t be pinned down by formal definition, but which nevertheless can be subject to a “you know it when you see it” test.
The mocking of this view always struck me as odd, given that huge numbers of legal standards (unavoidably) operate along similar lines.
Consider the ABA’s Model Code of Judicial Conduct, which says “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”
The only way the facts in Capteron could be more egregious would be if the litigant had sent a certified letter to the judge telling him he’d give his campaign three million bucks if the judge cast the deciding vote the right way in the litigant’s $50 million lawsuit. West Virginia has adopted the Model Code, but like in almost every other jurisdiction the enforcement of that code is left up to the discretion of individual judges, who decide for themselves if, for example, being given three million bucks by a litigant in a case pending before the court in which the judge will cast the deciding vote might lead to the the judge’s impartiality being subject to reasonable questioning.
Roberts’ dissent adds up to the claim that drawing any line in these circumstances is worse than drawing no line at all, because of slippery slope concerns. That’s the same logic that leads some first amendment absolutists to claim laws against child pornography are unconstitutional — and it’s about as plausible.