Federal Judiciary

Academic round-up

By Akin Gump Supreme Court Practice Group

A number of interesting articles have recently been published addressing the Court?s decision last Term in Caperton v. A.T. Massey Coal Co., which held that due process requires an elected justice to recuse himself from a case involving a key campaign supporter.   

In ?Electing Judges, Judging Elections, and the Lessons of Caperton,? published in the Harvard Law Review, Professor Pamela Karlan argues that despite the Court?s efforts to cabin the decision to its unusual facts, Caperton raises significant questions about the impartiality of elected judges.  She concludes that ?the logic of Caperton is far more destabilizing than the Court might have intended.?  Yet she points out that because the U.S. Supreme Court is the only court capable of reviewing a state judge’s refusal to step aside, the decision itself will likely have little impact without legislative reform or changes in judicial culture.  In the same volume, Professor Penny White argues that the real problem is judicial elections themselves, which ?threaten the basic promise of fundamental fairness.?  (Professor White has a unique perspective on this issue, having served as a Justice on the Tennessee Supreme Court until she was voted out of office following her decision to reverse a death sentence.) 

Two law reviews have recently held symposiums on judicial recusal following the Caperton decision.  Syracuse Law Review published a diverse set of essays on the subject by experts on judicial ethics, including Professors Steven Lubet, Ronald Rotunda, James Sample, and Elizabeth Wydra, as well as by Supreme Court litigators James Bopp and Andrew Frey.  As Dahlia Lithwick drily notes in her introduction, the ?contributors to this symposium agree upon very little??which ensures that the reader benefits from a variety of perspectives.  Those interested in the subject should also keep an eye out for the forthcoming issue of Drake Law Review, which co-sponsored a symposium on Caperton with the American Judicature Society.

Full post as published by SCOTUSBLOG on June 10, 2010 (boomark / email).