The Judicial Ethics Forum (JEF)

As we predicted, the Supreme Court has voted five to four in general favor of the Due Process Clause and disfavor of judicial electioneering.  Justice Kennedy authored the opinion concluding that Justice Benjamin harbored a serious, objective “probability of bias” when he refused to recuse himself in a case involving his biggest supporter from his previous — and perhaps future — election.  Justice Benjamin also chose the two replacement jurists for the two justices who did recuse themselves from the case. 

The new (or perhaps more accurately, old-but-newly-fashioned) test has several formulations and considerations.  In essence, the Court held “that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’” Lavoie (quoting Monroeville in turn quoting Tumey).  Stated slightly differently, 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 opinion drew out two elements of the test: (i) election influence and (ii) case status.  The former 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 clarified that “[w]hether campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  The Court also focused on the status of any impending or pending case.  The opinion has a heavy undercurrent that no one should get to choose — even with good money — their own judge in a pending matter.  As the Court put it, the “temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical.  It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.”  The principle seems simple and sound enough: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

Interestingly, the dissenters argued that the decision will create an increase, if not a flood, in “Caperton claim[s].”  Assuming those claims are meritorious — and judicial elections do provide fertile grounds for such claims  — we should thank this watershed decision and welcome the flood. 

The full text of the opinion, as well as the dissents of Chief Justice Roberts and Justice Scalia, can be found here.