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The Roberts Quartet and Justice for Sale

By Scott Horton
June 10, 9:51 AM, 2009

This week, the Supreme Court handed down an important decision [ http://www.nytimes.com/2009/06/09/us/politics/09scotus.html ( http://www.nytimes.com/2009/06/09/us/politics/09scotus.html?pagewanted=all )] on good-government grounds in the case of Caperton v. Massey. The case came out of West Virginia, where competing mining interests had won a $50 million award against A.T. Massey Coal Co. The case was appealed to the state supreme court, where the award was overturned. The decisive vote in the decision in favor of A.T. Massey Coal was cast by Chief Justice Brent Benjamin. Benjamin was elected to the bench in a bitter and divisive campaign, in which a single decisive benefactor contributed more than $3 million to his cause: Don L. Blankenship, the CEO of A.T. Massey Coal Co.

Although the canons of judicial ethics require a judge to step aside when facts would create an appearance of impropriety, Benjamin refused to do so, insisting that no reasonable person would think him biased simply because his election effort was largely financed by A.T. Massey’s CEO.

The case went to the Supreme Court on a narrow question: did the Due Process Clause of the Constitution require Benjamin to step aside? The issue had regularly been resolved up to this point as a question of judicial ethics or state law, and this case presented it squarely as a matter of entitlement under the U.S. Constitution. Does a litigant have a constitutionally protected right to have his case decided by a judge who is not beholden to a party to the litigation as a result of substantial campaign donations?

The ruling came down, not surprisingly, in support of the petitioner. The West Virginia Supreme Court decision was overturned. The Constitution required Judge Benjamin to step aside. That outcome didn’t surprise many people in the legal community. Many were surprised, however, by the fact that the decision was very close: 5 to 4. The Court’s right-wing quartet of Roberts, Scalia, Thomas, and Alito, stood decisively in Judge Benjamin’s corner. They argue against viewing a judge’s recusal over campaign donations as being constitutionally mandated. The dissent, authored by Judge Roberts, argued that the decision will flood the courts with frivolous litigation by parties who believe their judge is biased. “The déjà vu is enough to make one swoon,” Roberts wrote. “I believe we will come to regret this decision.” Roberts was contradicting Justice Anthony Kennedy’s view stated in the majority that cases like Caperton’s—in which a judge refused to step aside in a litigation involving his principal campaign funder—would be exceptionally rare.

But there may be a deeper rationale behind the opinion of the Roberts quartet. Whereas movement conservatives once complained bitterly about judicial elections dominated around the country by the trial bar, their complaints have gone silent over the last decade, as the Republican Party and its allied business interests have come to dominate the elected bench in most of these states. New York University’s Brennan Center estimates that the U.S. Chamber of Commerce has poured $50 million into state judicial races over the last six years. The trial lawyers have also raised substantial sums, but they now lag far behind the organized fundraising efforts of G.O.P.-loyal groups. The result has been a fairly dramatic shift in control over the elected state bench, in states like Alabama, Mississippi, Texas, and West Virginia, where movement conservative Republicans who think and look much like the Roberts quartet have taken charge. One beneficiary of the shift was Brent Benjamin, a Republican insurance defense lawyer elected to the West Virginia court with massive funding from business interests.

Curiously, the Justice Department kept out of the Caperton case. But then it was faced with a particular problem. In the Bush era, the Justice Department went aggressively after judges who sat on cases involving the interests of their campaign contributors, provided that the judges were Democrats. The Bush Justice Department pursued this matter under the highly controversial “theft of honest services” statute. A prime example involves Judges Walter Teel and John Whitfield in Mississippi, who sat in cases in which lawyers who contributed to their campaigns made arguments. The conduct of Teel and Whitfield was trivial compared with Judge Benjamin’s. But the Bush Administration put both Teel and Whitfield in prison, creating openings to be filled by Republican judges. I profiled the Teel case here [ http://www.harpers.org/archive/2007/12/hbc-90001998 ]. Significantly, when accusations were raised against Republican judges sitting in cases involving business interests that made large-scale donations to their campaigns, the Bush Justice Department couldn’t understand what the commotion was all about. It rejected any suggestion that business community donations might influence a judge’s handling of the case in favor of business interests.

Looking at the Caperton case, we see the same line-up. Supporting the creation of a Due Process standard for judicial campaign contributions were bar associations, judges’ associations, and good-government advocates from across the country. Supporting Judge Benjamin and the idea that the Chamber of Commerce is entitled to benefit from its investment in judicial elections were a handful of movement conservatives and Republican attorneys general, led by Alabama’s Troy King, who had been elected with the support of the same interests. The amicus briefs [ http://www.scotuswiki.com/index.php?title=Caperton_v._A.T._Massey_Coal_Company%2C_Inc.%2C_et_al. ] give a very clear portrait of the alignment of interests in the case, and the Roberts quartet held tenaciously to the arguments made by movement conservatives in support of the Chamber of Commerce and its interests.

Alabama in fact furnishes a good demonstration of the interests in play. The state supreme court’s sole Democrat, Chief Justice Sue Bell Cobb, told the Wall Street Journal [ http://online.wsj.com/article/SB124459013388599997.html ] that “the massive amount of money flowing into judicial races certainly impacts the perception of whether courts can be fair.” The Alabama court recently struck down a $3.6 billion award to the state against ExxonMobil by a vote of 8 to 1, with Cobb being the sole dissenter. Republican candidates for the Alabama Supreme Court, including the majority on the ExxonMobil decision, had received $5.5 million from lobbyists, lawyers, and organizations funded by ExxonMobil [ http://www.harpers.org/archive/2007/12/hbc-90001908 ].

But I wonder: had this case come up involving a judge who received overwhelming funding from trial lawyers whose tort verdict he then upheld, would Roberts and company have decided the matter the same way? I’m skeptical of that. In fact, I could see them upholding a Justice Department Public Integrity prosecution of the judge in question, pushed by the same folks they rub elbows with at Federalist Society junkets. The decision of Justice Kennedy and the majority would, however, not likely move an iota. This is very revealing of politics on the Court. It points to four justices for whom partisan political gamesmanship is everything, and five justices who resolve cases on the basis of principles, putting politics aside. That’s an uncomfortably narrow margin for judicial independence.

© The Harper's Magazine Foundation

http://www.harpers.org/archive/2009/06/hbc-90005157