An important and timely case that could change the way state Supreme Court justices are elected went before the U.S. Supreme Court this Tuesday. The case, Caperton vs. Massey, involves issues at the heart of our judicial system: impartiality, fairness and the right to due process.
In 2004, the CEO for Massey Energy, Don Blankenship, spent $3 million on the election campaign of West Virginia Justice Brent Benjamin. Justice Benjamin later went on to side in a 3-2 majority throwing out a $50 million lawsuit against Massey Energy. The company Benjamin ruled against, Harmon Mining Corp., formerly owned by Hugh Caperton, asked Benjamin to recuse himself from the case, citing the appearance of biases. Justice Benjamin refused, saying nothing in the state constitution required him to do so. Caperton appealed the decision, claiming his 14th amendment right to due process had been violated. Both sides had their day in court Tuesday.
The court seemed to be split along familiar lines at the end of deliberations, with most scholarly observers thinking it would be a split 5-4 decision, and Justice Anthony Kennedy would cast the key vote. The central issue is whether or not there can be such a thing as a due-process test. In reports, Justices Roberts and Scalia appeared to reject this broad interpretation of the 14th amendment, claiming the court cannot operate on a ‘sliding scale' rule for justice recusal. There is no reasonable standard or percentage of bias that can distinguish between legitimate politicization of the election process and improper association with a potential litigant and as such, it should be left to the states to decide. One can assume Justices Alito and Thomas would agree. Justice John Paul Stevens voiced the most vociferous views of the more liberal bloc of the court (usually including Breyer, Ginsberg and Souter). He claimed ""We have never confronted a case as extreme as this before,"" and that the case is a matter of public confidence in the judicial system. When Scalia countered that the metric for recusal is indefinable, Stevens countered: ""Of course, you can stop at what is obviously improper ... This fits the standard [in an obscenity case] that Potter Stewart articulated when he said ‘I know it when I see it.'""
Justice Kennedy assumed his usual role as middle moderator. Some experts saw his final round of questions hinting at siding with Caperton, at the end saying: ""Our whole system is designed to ensure confidence in our judgments ... And it seems to me litigants have an entitlement to that under the due process clause.""
The actual decision won't be known for a couple months, but its potential impact is hard to measure. Currently, many states have judicial systems intertwined with the political electoral process. Six states, including Wisconsin, have direct elections for their Supreme Court justices. Nationwide, funding for state high-court races have escalated at an alarming rate since 1989-1990, rising from $6.2 million to $43.2 million in 2007-2008. A recent Wisconsin court ruling did nothing to curtail this. Instead it allowed for court candidates to declare open partisanship, join political parties, endorse political candidates and directly solicit campaign donations.
If the court does rule in a 5-4 decision siding with Caperton, a great victory will have been made for justice and the American people. For too long we have allowed money and power to control and decide the everyday workings of our government. Our prisons are filled with examples of cases where too little money, unqualified lawyers and the wrong skin color end in asinine convictions and perpetuate the very real appearance of partiality in our judicial system. The politicization and election of state Supreme Court justices does nothing to mitigate this appearance; it merely continues entrench it.
Under President Bush we saw just how damaging a role partisan politics can play inside an entity designed to protect and promote justice. For over five years, from 2003 to 2008, the U.S. Justice Department itself was run awash with political litmus tests and open discrimination, selecting for ""RTAs"" (Right-Thinking Americans), destroying the Civil Rights division and inter-department confidence in their mission, finally culminating in the—now deemed improper—firing of eight U.S. attorneys and the resignation of our attorney general. In Wisconsin, our last two Supreme Court elections gained national attention for their vitriolic and race-baiting ads and obscene money spending (over $4 million), most notably by the Wisconsin Manufacturer and Commerce special interest group.
We lost one supremely qualified and well-respected Justice (Butler) to an unknown and untested circuit court judge through a malicious and racist ad campaign, and elected another judge (Zeigler) in spite of serious ethical concerns. The Caperton vs. Massey case has the potential to send serious reverberations through our current election-based system for justices. As far back as 2007, all seven justices signed a letter in support of publicly financed campaigns. This case proved further the need to reform our system. Public trust in a fair, balanced and impartial judicial system ought to be a starting point for our democracy. Recently, it has become just another problem on the ever-growing list. It will take a gigantic push from the U.S. Supreme Court to right this sinking ship. This case might be that push.
Joe Koss is a junior majoring in secondary education in social studies. Please send responses to opinion@dailycardinal.com.
