Chief Justice Predicts U.S. Supreme Court Overreach Will Erode Confidence In Judiciary
June 8, 2009
“Not every campaign contribution by a litigant of attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.” (Washington Post) So wrote Supreme Court Justice Anthony Kennedy today in the Court’s ruling that a West Virginia Supreme Court justice should have recused himself from a case involving a company whose chairman spent $3 million in an independent campaign to defeat that justice’s opponent.
In a February post, I wrote that since the particular facts of this case were so extreme and unusual, this wasn’t the case to issue a general ruling even in the narrow area of recusals. Federalizing the process of judicial recusals, I warned, would just lead to endless litigation and “judge shopping” – both designed to influence the outcome of a case. Chief Justice Roberts echoed these concerns even more sharply in his dissenting opinion:
“The Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” (emphasis mine)
The new recusal standard invented by the Kennedy majority “fails to provide clear, workable guidance for future cases,” Roberts writes. He then rattled off a list of 40 questions – “only a few (!) uncertainties that quickly come to mind” – judges will have to consider when wading through the coming flood of bias charges by trial lawyers who find themselves on the “wrong” end of a decision. In the final analysis, says Roberts:
“Today’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratituted?).
Perhaps recognizing the Pandora’s Box opened by his decision Justice Kennedy tries to pull back, arguing that “most disputes over disqualification will be resolved without resort to the Constitution.” Roberts is having none of it, calling Kennedy’s qualifier “just so much whistling past the graveyard.”
“ … I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous ‘probability of bias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.”