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In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a litigant cast the deciding vote to relieve the litigant of a $50 million liability. The Court reached this result, one I view as compelled by common sense, through a 5-4 vote, with the dissenters, led by Chief Justice John Roberts and Justice Antonin Scalia, minimizing the danger of biased judging presented by the situation and questioning the practical feasibility of the Court's approach as well as the wisdom of expanding review of state court judicial disqualification pursuant to the Due Process Clause.

Although its critics see Caperton as an unwise intrusion into state elections and state disqualification practice, Caperton's biggest problem is that it did not go far enough and make due process congruent with prevailing state and federal disqualification standards. By crafting an “serious risk of actual bias” test for due process-based constitutional disqualification that differs (albeit perhaps not greatly) from the well-established general approach to disqualification of a judge when his or her impartiality may be reasonably questioned, the Court has been unduly tentative and confusing in setting the parameters of judicial impartiality. The Court should recognize that any error in failing to recuse deprives the affected litigant of a fundamental constitutional right--the right to have the case heard by a neutral adjudicator. Consequently, any erroneous rejection of a request to recuse is at least technically one of constitutional dimension that should be potentially subject to U.S. Supreme Court review and correction.

However, the Court need not become mired in the flood of disqualification cases predicted by the dissenting justices in Caperton. Insistence upon review of disqualification decisions by a neutral body of judges can be used to ensure that litigants receive sufficient procedural due process. The constitutional question surrounding judicial recusal is primarily one of procedural due process. If states put in place adequate procedures for deciding and reviewing disqualification motions, few Caperton-like situations compelling high court intervention are likely to ensue. Where erroneous recusal decisions occur in spite of such safeguards, U.S. Supreme Court review should be at least potentially available as necessary to vindicate the strong constitutional interest in neutral courts and fair adjudication, an interest sounding in substantive due process. The Court need exercise this potential power only in relatively egregious cases, thereby promoting judicial economy while nonetheless discouraging disqualification abuses.

Publication Citation

29 Rev. Litig. 249 (2010).