When should a judge not be a judge?

Stephen Sedley

Few people in this country, I would guess, reading this headnote to the official report of a recent decision of the US Supreme Court, would regard it as a difficult case:

After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking re-election. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict.

To all appearances, a key member of the appeal court which absolved the appellant company of liability had owed a debt of gratitude to that company. He should not have sat, and the decision in which he participated should be regarded as a nullity. What not everyone in this country will know is that in the 39 states of the US where judges are elected, it is routine for candidates’ campaigns to be sponsored by the law firms, and sometimes by the litigants, who will be appearing before them. Recusal in such states is going to require more than the occasional dollar in the judicial collecting tin.[*]

Would it matter if the same judge had in other cases found against the company that had sponsored his campaign? The risk of bias is not limited to favouritism. There is an equal and opposite risk that a judge, in endeavouring not to show favour, will bend over backwards and lose his balance that way. The only safe route is the exit.

The West Virginia court of appeals was by no means insensitive to the issue of apparent bias. When the petitioners applied for a rehearing of the appeal, there were motions for disqualification of three of the five original justices. Photos had been produced of one of them, Justice Maynard, vacationing with Don Blankenship on the French Riviera while the case was pending; Maynard correctly stood down. Justice Starcher too agreed to stand down because he had said publicly that ‘Blankenship’s bestowal of his personal wealth, political tactics and “friendship” have created a cancer in the affairs of this court.’ That his remark might have been entirely justified made no difference. But Justice Benjamin, now in the role of acting chief justice, refused to stand down.

What Europeans may find remarkable is not only that it was by a single vote that the US Supreme Court eventually struck down the West Virginia decision for apparent bias, but that it was the four judicial conservatives, Roberts, Scalia, Thomas and Alito, who voted to uphold the judgment. They may also now know that, thanks to a subsequent Supreme Court ruling, Massey need no longer channel its subventions through its chairman: it can donate to judicial re-election campaigns corporately and without limit. What is still uncertain is whether the Caperton decision means that corporations are likely to be wasting their money because the bare fact of their donations will disqualify the beneficiaries from sitting on their cases, or whether (as the majority judgment suggested) disqualification on this ground is going to be confined to facts as extreme as those in Caperton.

The seeds of Supreme Court abstentionism were sown long ago in the US. Justice Kennedy, writing for the Caperton majority, put it this way:

It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’ As the court has recognised, however, ‘most matters relating to judicial disqualification [do] not rise to a constitutional level.’ The early and leading case on the subject is Tumey v. Ohio. There, the court stated that ‘matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion’ … As new problems have emerged that were not discussed at common law, however, the court has identified additional instances which, as an objective matter, require recusal. These are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’

The Tumey case was, at least to our eyes, another case in which there was a manifest risk of bias: it concerned a mayor with judicial powers whose municipal funds were swelled by any fines he imposed. It echoed the early decision of Chief Justice Coke in Dr Bonham’s Case. Justice Kennedy explained:

The Tumey court concluded that the Due Process Clause [of the Constitution] incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case. This rule reflects the maxim that ‘no man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.’

Those last words are Madison’s, writing in the Federalist in 1787, and they put in crystalline form what is still today the essential logic on both sides of the Atlantic. It is their application which is fraught with difficulty. The first main difficulty is to decide what makes someone else’s cause the judge’s own. The second, which is far from being merely technical, is who decides and how.

The dissenting judgment in Caperton sets out a list of 40 questions allegedly begged by the majority opinion, a list too long and in places too contrived to reproduce here. But all the questions drive at a single object: to demonstrate that once the test for recusal is set at any but the highest constitutional level, the grounds for removing judges from the court, and with them the spate of motions for recusal, will be unending. That is a serious consideration, and one which the British courts, which set the bar much lower, are already having to face up to. But serious as it is, it cannot be decisive. As Chief Justice Holt said three centuries ago, when the same argument was advanced in the great election corruption case of Ashby v. White, if wrongs are multiplied, remedies must be multiplied.

Even so, as Justice Scalia said in a pointed dissent:

The court’s opinion will … [add] to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated – and likewise the law governing it, which will be indeterminate for years to come, if not for ever. Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means.

Britain, like other countries in the Commonwealth, has already embarked on this road. But, at least in countries where judges are appointed and not elected, the road has not turned out to be a highway to hell; neither, however, is it a yellow brick road to contentment. It is a tortuous and sometimes stony road which is worth following even if its destination is uncertain.

When does somebody else’s cause become the judge’s own? When the judge has a private interest in that person’s prosperity, plainly. The case which set the tone in Britain, in 1848, involved the then lord chancellor, Lord Cottenham. Cottenham turned out to hold shares in the canal company in whose favour he had decided a case brought by a litigious solicitor named Dimes, who had bought a piece of land in order to hold the canal company to ransom for crossing it. Dimes had litigated without much success for more than ten years when luck delivered Cottenham into his hands, and he finished by pocketing the £700 which the canal company finally had to pay him to go away. The turning point, however, was not as neat or sharp as my account so far may have suggested.

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[*] To recuse means to object to an office-holder such as a judge; used reflexively it signifies a judge standing down. It thus shares with ‘recusant’ a connotation of rejection of authority.