The Chief Justice of the United States would probably have excelled as a negative debater in high school forensics competitions. Good negative debaters are, as my high school English teacher put it, “great point-pickers” in that they frequently challenge affirmative proposals with a series of “what if?” or “how about?” or “what would you do if?” questions designed to leave the affirmative resolution bleeding to death of a thousand cuts. Less charitable observers might call it nit-picking. After reading Chief Justice Roberts's dissenting opinion in Caperton v. A.T. Massey Coal Co., one can easily imagine him as a high school debater standing firm in opposition to some affirmative resolution not so much by opposing the well-meaning-but-naive concepts contained in the resolution, but by raising myriad questions about the proposal's potential for practical application. Even the best affirmative debaters will be hard pressed to effectively refute the negative debater's laundry list of concerns, particularly in the few minutes available to formulate a response. Notwithstanding the endless droning of sports announcers about “momentum,” it is generally easier to play defense than offense because the side or party advocating an extension of the law or the imposition of liability or discipline must shoulder the burden of persuasion. If there is a “tie” with the pros and cons of argument in equipoise, the defense or status quo is usually deemed both the logical winner and the practical winner.
In Caperton, the U.S. Supreme Court narrowly adopted what to most lay observers probably seems like an inarguable proposition: a judge whose candidacy receives more than $3 million from a litigant should not sit in judgment on a case where that litigant is attempting to avoid a $50 million liability. Nonetheless, the Court reached this common sense result by a slim 5-4 vote, with the dissenters, led by Chief Justice Roberts, minimizing the danger of biased judging presented by the situation and, more defensibly and perhaps effectively, raising concerns about the Court's authority and methodology in policing the disqualification of state court judges pursuant to the Due Process Clause.
In particular, the dissent posed forty questions in support of its view that the majority's invocation of the Due Process Clause to require judicial disqualification due to receipt of enormous campaign contributions was not a sustainably practical approach to policing the judicial integrity of state courts. Judging from the early reaction of many commentators, the dissenters scored more than a few rhetorical points. Although Caperton was generally well received as an antidote to the perceived problems of money and judicial politics, several commentators, echoing the arguments of the dissent, called into question the wisdom of the majority's correction of judicial outrage. Experienced debaters and former debaters cannot help but read the opinion with some admiration for its craft. The Roberts dissent embraces an almost indefensible position (that the Court should just let it go when the public could reasonably suspect that a litigant succeeded on appeal by “buying” a key judge through massive campaign support) but nonetheless puts the majority on the defensive and convinces many observers that the majority's effort to right a wrong will cause more problems than it solves.
39 Southwestern L. Rev. 1 (2009).
Stempel, Jeffrey W., "Playing Forty Questions: Responding to Justice Roberts' Concerns in Caperton and Some Tentative Answers About Operationalizing Judicial Recusal and Due Process" (2009). Scholarly Works. Paper 234.