Monday, June 08, 2009

Judicial Recusal and Increased Litigation

The US Supreme Court decided Caperton v. A.T. Massey Coal Company, Inc. today, holding that due process required a state supreme court justice (Justice Benjamin) to recuse himself from hearing an appeal where the CEO of one of the parties (Blankenship) spent millions of dollars to elect that justice (the efforts constituted more than half of the money spent to elect the justice).

As stated by the majority, this was an extreme case where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” The most conservative members of the court dissented, but not on the ground that the state justice's decision to hear the appeal was appropriate. Instead, the dissenters were concerned with increased litigation: They argued that the majority's rule--that a judge must recuse themselves where there is a “probability of bias”--does not provide judges or litigants with "clear, workable guidance" for when recusal will be constitutionally required. Because the rule is not clear, there will be an increase in claims and motions to disqualify judges and, consequently, an increase in litigation over questions left unanswered by the majority opinion. For his part, Justice Roberts provides 40 questions as examples of "a few uncertainties that quickly come to mind." And Justice Scalia believes that litigation over the recusal issues will, more often, delay our "seemingly interminable legal proceedings."

The dissent appears to ignore the fact codes of judicial conduct provide more protection than due process requires. As a result, in what cases will a Caperton claim be made? Claims for recusal in state and federal trial courts and intermediate appellate courts will be no different: motions will continue to be made under the more stringent codes applicable in each jurisdiction. A prudent litigator may include a citation to Caperton, but there will be no change in the amount of litigation. Only in cases where a state supreme court judge or justice fails to recuse him- or herself or where the state supreme court completely fails to enforce its own judicial code is there the possibility of further litigation in the US Supreme Court. I predict the Supreme Court will hear, at most, one or two more case like this in the next decade, if only to establish what is clearly not an "extreme case."

Justice Roberts also believes that the "inevitable" "increase in allegations that judges are biased, however groundless those charges may be . . . will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." This is a curious defense of the judiciary. First, it ignores that litigants often make allegations of bias regardless of whether there is a legal remedy for the claim. If Roberts's dissent was the majority opinion, it would not eliminate allegations of a biased judiciary, but confirm them. Second, his argument conflicts with basic judicial principals, including access to the courts and freedom of speech. Anyone may file a complaint with spurious allegations; it is litigation that will hopefully discover the truth or falsity of the allegations. Finally, it is implausible that "the public" will be aware of any increase in motions to recuse. Instead, most people are only aware of their personal experiences with the courts, or extreme cases of apparent abuse that gain media attention, such as Blankenship's assistance in electing Justice Benjamin.

Justice Roberts complains that "[t]oday’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)." However, he (and the other justices) routinely act as political scientists, economists, and psychologists when deciding cases. Ironically, the analysis in Roberts's dissent cannot be separated from Justice Roberts's thoughts on political science (Blankenship's participation in the election probably did not influence the election or Justice Benjamin's decision), economics (the cost of litigating recusal claims will outweigh the benefits of removing biased judges), and psychology (the public's perception of judges will be harmed through litigation of groundless recusal claims more than allowing judges with an appearance of bias to rule on cases).

I agree with Justice Roberts that it may be difficult for judges to act as social scientists. But legal reasoning is often founded upon one's implicit views regarding the social sciences.

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