Due Process and Judicial Elections

In a pleasantly surprising decision, the Supreme Court today held 5-4 (along predictable ideological lines with Kennedy as the swing vote) that West Virginia judge Brent Benjamin violated the due process rights of plaintiffs in a civil suit when he refused to recuse himself despite the fact that the chairman of the company appealing the verdict in favor of the plaintiffs had spent more than $3 million on Benjamin’s campaign. Kennedy’s opinion for the Court emphasized the extreme nature of the facts in holding that the appearance of bias in this case could not be consistent with due process:

Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.

As the passage above suggests, Roberts’s dissent focuses on the alleged inapplicability of the rule, coming up with a 3940-part parade of horribles lamenting the fact that judges will actually have to apply discretion in determining whether the risk of judicial bias “is too high to be constitutionally tolerable.” (In his short dissent, Scalia combined his trademark advocacy of bright-line rules with his trademark showy-but-unilluminating rhetorical move, in this case quoting a Talmudic maxim.) At least Scalia and Thomas are being consistent, however. Note that when it comes to protecting the interests of big business Roberts and Alito have no objection to due process standards that require substantial judicial discretion. (And, certainly, reducing the appearance of judicial bias seems more central to due process concerns than limiting punitive damages.)

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today’s ruling. To the extend that today’s decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

[X-Posted to TAPPED.}