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Follow the Money

I don't know what grades Don Blankenship got in high school civics, but he sure understands the electoral process pretty well.  After a West Virginia jury hit up his coal company with a $50 million verdict, he set his sights on the upcoming elections for the state's supreme court, knowing that the case would wind up there.  Blankenship spent over $3 million in contributions and direct expenditures on behalf of Brent Benjamin, who was seeking to oust an incumbent.  In a judicial election in a small state, that's a lot of money; Blankenship's contributions and expenditures came to a million dollars more than the rest of the money raised by the two candidates combined.

Turned out to be a sound investment.  Benjamin was elected, and when the case finally came before the Supreme Court, he provided the margin for a 3-2 reversal of the verdict.

On Monday, in Caperton v. Massey Coal Co., the US Supreme Court decided that didn't pass the smell test, and held that the Due Process Clause compelled Justice Benjamin to accede to the plaintiff's request that he recuse himself.

Reading Kennedy's opinion for the majority gives one an understanding of the difference between ethics and legality:  while Benjamin's action seems obviously wrong, fashioning a constitutional rule to cover the situation is no mean feat.  While calling for the need for "objective rules" to determine actual bias, the best the majority can come up with is

whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

In the context of a case involving campaign contributions, that results in an inquiry which

centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

Roberts makes a fairly compelling argument in his dissent (joined by the other conservatives) that this is pretty much mush, and the majority seems to accede as much by noting how "unusual" and "extreme" the facts are in this case.  Roberts skewers them for this as well, arguing that the net result of the decision could be to further erode confidence in the judiciary, rather than to enhance it:  armed with a new "due process" right to a judge uninfluenced by campaign contributions, expect litigants to raise that issue with increasing frequency.

And Ohio might prove a fertile ground for doing so.  Back in early 2008, the Ohio Supreme Court upheld the latest batch of tort reforms passed by the legislature, despite the fact that previous courts had declared virtually identical measures unconstitutional.  The arguable difference, I suggested back then, was that the health and insurance lobbies had provided sizable campaign contributions to candidates for the high court; three of the justices who'd voted to quash the previous legislation had been replaced, and their three replacements all voted to uphold the new law.  In fact, back in 2006 the New York Times did a study of the Ohio Supreme Court which found

that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time...  In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors’ cases.  In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.

That's not to suggest that justices are bought and sold; that Republican justices would have pro-business tendencies should not come as a surprise.  In short, the justices didn't vote the way they did because of the campaign contributions they got from big business, big business gave them the contributions it did because it knew they were more likely to vote its way.  And we're not talking about a totally uneven playing field.  The dissent in Capertown notes that Justice Benjamin's opponent received the benefit of over $2 million in campaign contributions from a political action committee funded by plaintiff's lawyers.

It's hard to know what effect Caperton will have.  Roberts predicts that it will be quickly jettisoned as it proves unworkable, analogizing it a couple of cases from the 90's.  In the first, U.S. v. Halper, the court was confronted with the question of whether a civil penalty can be prohibited by double jeopardy considerations:  a doctor had been found guilty of Medicare fraud, had been criminally sanctioned, and upon his release from prison had found the government seeking civil sanctions of $130,000 against him.  The Court in Halper had held that this was the "rare case" when a civil penalty was so "overwhelmingly disproportionate" that it constituted a double jeopardy violation; a mere eight years later, in Hudson v. U.S., the Court overruled Halper, finding that the rule it had adopted had "proved unworkable."  (Roberts had first-hand knowledge of Halper; he was appointed by the Court to represent the doctor, and it was his first argument before the Court.)

Given that the majority's standard for determining bias is reminiscent of Justice Potter Stewart's test for obscenity ("I know it when I see it"), I wouldn't bet against Roberts being right.  The sad thing is that his predictions as to whether this is going to increase or decrease the public's estimation of the integrity of the judiciary is pretty much beside the point:  as long as insurance companies and plaintiff's lawyers are willing to throw large sums of money at judicial elections to the higher courts, it is quite understandable that the public will assume that those organizations wouldn't do that unless they anticipated some return for their money.


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