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Dissenting Opinion Disfavors Interference Into Judicial Campaign Contributions

By Brian Harris

In my last post, I discussed briefly the recent opinion and ruling by the U.S. Supreme Court in Caperton v. Massey Coal Co., setting down a rule that will at times require the recusal of a judge who may have been the beneficiary of a campaign contribution from one of the litigants appearing before him.  In the 5-4 decision, a thoughtful dissenting opinion was written by Chief Justice John Roberts and joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, and we will look at that briefly.

While the dissenters recognized the grave danger of an unfair tribunal, a danger that the majority was attempting to prevent, the dissenters did not advocate what they felt was the majority?s vague bias standard, i.e., ?probability of bias.?  The logical result, Roberts wrote, of such a blurry line, will increase claims of bias against judges, an increase that Roberts felt ?would do far more to erode public confidence in judicial impartiality then an isolated failure to recuse in a particular case.? 

In a very short dissenting opinion by Scalia, he cautioning that under the law of unintended consequences the majority ruling in Caperton would undermine, as opposed to buttress, public confidence in the judiciary.  He feared that the court?s opinion will reinforce the perception of litigation as a game, and the new Caperton recusal option as ?adding to the vast arsenal of lawyerly gambits that will come to be known as the Caperton claim.? 

The validity of the fears expressed by the dissenters in the Caperton case will require the passage of time and the collection of experience before any conclusions can be drawn.  There is no question, however, that for the time being, litigants have the basis to question the fairness of a tribunal when the tribunal may be the beneficiary of disproportionately large campaign contributions from one of the litigants or parties before it.

Charles Haddick
Dickie McCamey & Chilcote
http://www.dmclaw.com/

Full post as published by The Legal Intelligencer Blog on July 18, 2009 (boomark / email).