The idea of judicial impartiality is an old one. Chief Justice of the Indiana Supreme Court Randall Shepard reminds us that, in the book of Deuteronomy, Moses is said to have instructed judges of the tribes of Israel that they “‘shalt not respect persons’” nor “‘take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous.’” The author of Leviticus cautions that “you shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” King Alfred the Great required not only that magistrates be literate, but regarded judges who “slay folk by false judgments” to be guilty of homicide. In one year, he had forty-four judges hanged for such false judgments. The Lex Visigothorum (Visigothic Code) required that judges who had ruled falsely due, not to ignorance, but to partiality, cupidity, or for the sake of profit would be required to make restitution to the wronged party. If unable to make restitution, the judge was to “be delivered as a slave to him to whom he is indebted, or, after having been exposed in public . . . receive fifty lashes.”
In Caperton v. A.T. Massey Coal Co., the Supreme Court considered a less extreme approach to the problem of judicial bias. The Court has long recognized that the constitutional guarantee of due process may require recusal of judges holding an interest in the outcome of a case. But prior to Caperton, the application of this requirement had been limited to cases in which a judge had an individual or official pecuniary interest in the outcome of a case or was, in some sense, acting as both the judge and prosecutor. Caperton moved beyond this, declaring a generalized due process duty to recuse in circumstances in which a judge has an interest that creates an “unconstitutional ‘potential for bias.’” A five-to-four majority held that a successful judicial candidate’s potential “debt of gratitude” to a corporate litigant whose CEO had spent a large amount of money in support of his election required recusal.
The majority and dissent disagreed about whether the decision would launch satellite litigation seeking recusal of judges. They also disagreed over the need for a more specific standard. In my view, there is more potential for mischief than the majority recognized. The absence of clear guidance may very well lead litigants to play the Caperton card, particularly in high-profile cases before multimember appellate courts. This may well, as the dissent feared, disrupt the operation of state courts and undermine the public confidence in the judicial process that the majority sought to preserve.
While Caperton itself provides little guidance, it is highly unlikely that the Court intended to usher in a constitutionally mandated regime of aggressive recusal requirements. The Court repeatedly referred to the facts before it as “rare,” “extraordinary,” and “extreme.” I argue that Caperton’s scope and likely application can be informed by the Court’s recent decisions on judicial campaign speech and campaign finance regulation. These cases suggest some limits on a due process duty of recusal that Caperton itself did not provide.
