June 08, 2009

Initial Thoughts on Caperton v. Massey: First Meaningful Constitutional Limits on Excesses of Judicial Elections

As judicial elections in recent years have become, in the words of Roy Schotland, "noisier, nastier, and costlier," litigants have consistently sought to limit some of the excesses sometimes seen in judicial elections, which 39 states use for at least some of their judges. Until today's opinion in Caperton v. Massey, the Supreme Court refused to impose limits as a matter of constitutional law. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down on First Amendment grounds a state judicial code provision barring judicial candidates from "announcing" their views on disputed legal or political issues. Since White, as I've chronicled, lower federal courts have continued relying on the First Amendment to strike down a number of judicial codes seeking to keep judicial campaigns as something somewhat different from ordinary elections. (Justice O'Connor has since expressed regret about her crucial fifth vote in White, and has been working on the issue of judicial independence since retiring from the Court.) Since White and until today's decision in Caperton, the Supreme Court refused to consider other judicial election cases.

The details of Caperton are set out at the beginning of the opinion by Justice Kennedy. Briefly, a litigant with a $50 million case pending before West Virginia courts spent up to $3 million on independent activity (some directly, some through a 527 organization) supporting a candidate for the West Virginia State Supreme Court of Appeals. The candidate won, and he refused to recuse himself upon a motion brought by the other side. The justice, Justice Benjamin, cast the crucial vote in favor of the litigant. After the case was set for rehearing after recusal of two other Justices, he again declined to recuse and again cast the crucial vote. Today, in a 5-4 decision, the U.S. Supreme Court held that Justice Benjamin's failure to recuse violated the Due Process Clause of the 14th Amendment. Here are some of my thoughts on the case.

1. Judicially manageable standards. My first thought in reading this case with its 5-4 lineup was one of relief. With Justice Kennedy, the swing vote in play, I was worried we'd have another 4-1-4 split as we saw in the partisan gerrymandering case of Vieth v. Jubelirer in which Justice Kennedy, writing only for himself, bemoaned the lack of judicially manageable standards leaving the standard murkier than ever. But fortunately for the sake of judicial administrability, we have a 5 justice majority opinion (with no concurrences), that sets forth a relatively clear standard. Though the general language is one of "probability of bias," the main test is the one that appears on page 14 (page 18 of the pdf):

    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.

The Court repeatedly notes that the facts have to be extreme, and in most cases campaign spending will not be enough to trigger recusal.

2. The dissent Though this is a relatively clear test, and one that will rein in the most egregious cases of potential bias, Chief Justice Roberts is right that the standard leaves open many questions about its implementation. In his dissenting opinion for himself, and Justices Alito, Scalia, and Thomas, the Chief lists 40 different questions that he says need to be answered in subsequent cases about how this standard is to be implemented. To be fair to the majority, I think the list overstates the nature of the uncertainty. Some of the questions, such as the question of causation, are answered by the majority (see slip. op. at 15.) But other questions raised are legitimate ones. The key difference between the majority and the dissent appears to be this: Is it worth the risk of many more recusal motions and additional litigation to flesh out the details of the new recusal standard? To the majority, the effort is worthwhile to promote the fundamental fairness of the judicial process in cases brought before elected judges. For the dissent, the effort is going to undermine faith in the judiciary, by increasing the amount of accusations of unfairness against judges.

3. Caperton and Campaign Finance. One of the most interesting subtexts of the decisions in this case is the role of campaign finance. Justice Kennedy, of course, has been one of the Justices most opposed to the constitutionality of much campaign finance regulation on First Amendment grounds. Here, however, Justice Kennedy acknowledges the important role that campaign spending plays in potentially influencing outcomes: if such outcomes can influence judges---creating the possibility of subconscious bias on the part of judges who benefit from independent expenditure campaigns---isn't the same true of candidates for other office, and doesn't that present a reason why even independent expenditures can be regulated? I would expect some of Justice Kennedy's words to be thrown back at him in a future case involving campaign finance laws outside the judicial elections context. Moreover, given the key distinction in campaign finance law between contributions and expenditures, I thought it was very curious that Justice Kennedy frames the issue at the beginning of the case as follows: "The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages." (My emphasis.) Only $1,000 of the $3 million spent supporting Justice Benjamin came in the form of a contribution to his campaign, thanks to a campaign contribution cap. The remainder were for independent expenditures and contributions not received by the Justice but by a 527. Perhaps this inadvertent equating of contributions and expenditures will disappear when this opinion is finalized for the U.S. Reports.

The dissenters' views are more in line with their view on campaign finance. Because they don't see anything objectionable about large (even one-sided) campaign spending supporting or opposing candidates, they see less of a constitutional problem with judges benefitting from such spending. It is just in the nature of campaigning that this kind of thing can happen. And, as the Chief points out, as far back as Buckley the Supreme Court recognized that independent spending can sometimes work against the interest of the candidate supported. (My sense in the real world is that this happens quite rarely, and that usually independent spending tracks the movements of the candidate campaigns, and seeks to independently emulate those movements.)

4. Overall significance. This is not just a victory for liberals who generally support more regulation of campaigns (though it certainly is that in terms of getting Justice Kennedy's vote). Recall that Ted Olson was the one who argued for recusal in this case before the Supreme Court. Some in the business community too will be happy with this ruling. Judicial elections are not going away---we haven't seen a state abolish them since White. Caperton provides a backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited. Given Chief Justice Roberts 40 questions, it will be interesting to track how much uncertainty actually comes out of this opinion. My sense is that things won't be as dire as the picture painted by the Chief Justice.

5. Justice Scalia's brief opinion. Justice Scalia's two page opinion quotes from the Babylonian Talmud: "A Talmudic maxim instructs with respect to the Scripture: 'Turn it over, and turn it over, for all is therein'.' The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935)." As I remarked when Justice Scalia made reference to the sanhedrin during oral argument in NAMUDNO, Justice Scalia does not mind citing foreign law, so long as it is a few thousand years old.

Posted by Rick Hasen at June 8, 2009 07:58 AM