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Steve Sheppard

Supreme Court Bans Judge Buying


Monday, June 29, 2009

This month, the United States Supreme Court held, in a close decision, that the Constitution forbids a litigant from paying to elect a judge who will hear that litigant's pending case. It might surprise readers that no federal law bars such a purchase of justice, but that is indeed the case – as long as the purchase comes through campaign contributions, not an outright bribe.

Surprisingly, this decision was not a foregone conclusion, and its result upset many, including the Chief Justice of the United States. Yet the Constitution could hardly have afforded anything less. Justice cannot be so easily bought or sold.

Just-in-Time Justice: The Facts

The case before the Court, Caperton v. Massey Coal, started years ago and resulted in a West Virginia jury's finding that the Massey Coal Company ("Massey") had lied to other coal companies and to miners, including Hugh Caperton, violating state law. The jury awarded Caperton and the other plaintiffs $50 million in damages.

While Massey appealed, its chairman gave $3 million to fund the candidacy of Brent Benjamin, a candidate seeking to unseat a judge on the state's supreme court. That sum dwarfed the money the incumbent spent on the race, and Benjamin was elected.

Once on the bench, Justice Benjamin refused – despite repeated requests from the plaintiffs -- to recuse himself from hearing Massey's appeal. And when the newly robed Justice expressed his views, he just happened to agree with, and vote for, Massey's arguments to strike down the jury's verdict.

All five of the five judges who had been on the court before the election had found that Massey's behavior justified the jury's verdict and award. After the election dust settled, however, a bench divided 3 to 2 ruled for Massey, with a separate opinion (totaling nearly ten thousand words) by Justice Benjamin arguing how fair he was being in casting the deciding vote.

Judge-Picking and Trust

And perhaps he was. Part of the problem in a complicated case – indeed, in most cases -- is that the American people cannot easily know whether the system truly works well, or is as corrupt as television suggests it is.

There is a veil over the law so that litigants and criminal defendants, whose wealth and very lives are put in the hands of others, cannot see how these precious assets are handled. We have to trust what courts do and what judges and juries say, which we only see from a distance. And there are always reasons to doubt the fairness of the court, of the judge, of the law. Thus, the law must be active in guarding the people's trust in the courts and their judges and juries.

Even if there isn't something as bald as a payoff, a smart litigant can still pick out a judge who is likely to possess a bias, by noting repeated themes in his or her decisions. One judge may be tough on standing, or may routinely reduce damages awards. Another may never deem it right to overturn a long jail sentence. A third may seem to favor the same types of corporations that were his or her clients in private practice. Although the litigant's claim regarding Justice Benjamin was based on a payment, not a pattern, there, too, the circumstantial case was disturbing.

Justice Benjamin claims to have made a fair decision, and I imagine he sincerely believes that Massey Coal's three million dollars had no influence on his vote. Yet even if he wasn't knowingly corrupt, he was stunningly naive to say he had no reason to step down from this case and let his untainted colleagues handle it without him.

Without the three million dollars, he would never have had that vote to cast. Massey Coal put him there for a reason, and it wasn't just his grades in law school. This was a just-in-time purchase of justice, and for Justice Benjamin to think otherwise cannot change the fact that Hugh Caperton and the rest of West Virginia saw it for what it was.

Recusal and Due Process

The only tool the law had to address such a situation, before the Court's latest opinion, was recusal–the power of a judge to voluntarily excuse himself from hearing the case. Yet Justice Benjamin would not recuse himself, and his colleagues had no power to make him. With no other remedy available in state law, Hugh Caperton sought constitutional review. The U.S. Supreme Court, under the watchful eye of recently retired Justice Sandra Day O'Connor (who sat in the audience) heard arguments in the autumn. On June 8, the Court announced that Hugh Caperton and the other plaintiffs had been denied the due process of law.

Justice Kennedy, writing for the majority, reasoned that this case presents too great a potential for bias for the Court to be confident that the plaintiffs had a fair hearing in the state supreme court. He noted that Due Process requires objective standards, and here, the objective facts were damning: The size of the contribution; its relationship to the election outcome; and the election's timing, so close to that of the appeal. These facts allowed the Court to find a significant and disproportionate relationship between the contribution and the election, and to deem this an extraordinary situation requiring recusal.

In dissent, the Chief Justice and Justices Scalia, Thomas, and Alito objected that the majority's standards were too vague. They opined that the question should have been left to Justice Benjamin.

Disappointingly, Chief Justice Roberts has nothing to say about what it must look like to the people of West Virginia to have their judge bought and paid for, in the middle of an appeal. Justice Scalia was at least a tad more honest in suggesting that injustices happen, and West Virginia should just get over it.

Thankfully for trust in the law, these views of the Constitution lost the day. The majority was right – and this decision should have been unanimous. Due process of law must secure fair trials for each person, and also promote a system of law that is worthy of the people's trust in it. The people of West Virginia – and the people of the United States – have a stake in enjoying the service of judges who are fair, and clearly so. If there is a real, obviously well-grounded doubt about the ability of a judge to be fair, or about his or her willingness to approach a case with an open mind, that doubt cannot be always resolved by the judge alone. Otherwise, the very bias that led to the recusal request, may also affect the recusal decision.

Leaving recusal to the doubted judge asks too much of the judge and demands too much of the people. Of course, allowing others to remove a judge -- by federal court review or by impeachment -- runs risks as well. The question is how to build this trust while still leaving a strong system.

A Common-Law Answer

Justice Kennedy's opinion provided a clear example to show that, sometimes, there is no solution but to force a judge to recuse: Imagine a judge's taking big money on the very eve of the case's beginning, or of an important decision. Surely no litigant has the right to give a lot of money to the judge and then expect to argue a case before that judge. Put another way, every litigant in the United States has a constitutional right to be heard by a judge to whom the other party did not just give, say, $3 million.

Granted, one extreme case does not define a rule. The dissenters are right about one thing; this case raises many questions, more than the forty Chief Justice Roberts listed. Yet the common law works that way, with questions being raised and answered over time. Conservatives often decry judicial activism for the very reason that judges' role is to decide cases, not regulate for the future as a legislature does.

This case was an easy one – and the Court's decision stands as a clear warning to the judiciary: If a judge cannot tell if the he or she should recuse under this standard, then recusal is a good idea.

Chief Justice Roberts is reasonable to worry about the dangers of litigation for the judge who really isn't crooked, but whose judgment is second-guessed. In that situation, however, appeals and collateral review can correct injustices.

Meanwhile, justice has been done: Hugh Caperton doesn't have to stand before the judge whom Massey Coal just paid. How could that have done anything but undermine trust in the law? The Court was right to say that constitutional due process requires more.

Steve Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law and author of I Do Solemnly Swear: The Moral Obligations of Legal Officials, just released by Cambridge University Press, among other works..

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