Thursday, June 11, 2009

Supreme Court: 5-4 Against West Virginia Justice--Only 5-4 !!!

This was not a difficult case. It was one of the easier ones.

But the current Court--the Supreme Court, whose foremost role is to safeguard the Constitutional guarantees for a free society, such as due process--just barely got it right.

Many if not most of the cases that get to the nation's highest court are tough. They're close. Reasonable, smart, conscientious judges can and do disagree about what the decision should be.

In those more typical cases, there is law supporting both sides. There are good reasons, policies and principles favoring each side. The Justices are required to judge. To exercise judgment. To pick the best result. What they believe is the best result. The text of the Constitution or of legislation virtually never dictates one particular result. (Sorry, but notwithstanding the political nonsense, judging at high appeals courts ain't that simple.)

There's no mechanical way to resolve the issues. It's not just a matter of here are the facts, here is the law, here's the answer. It's not: he was driving 70 mph, the limit is 50, so he's guilty of speeding. Such cases where the law is similarly certain and its application to the facts is clear are extremely rare at the Supreme Court. Such cases are decided much further down the chain of command.

The simple reality is that most cases that get to the Supreme Court can go either way. The Justices must pick and choose. They must decide what the law "is"--speaking realistically, what the law shall henceforth be. They're making law. They have to. (Again, forget the nonsense to the contrary.)

Some cases, however, are a bit easier than others. Even if the law is not otherwise clear. Even if there are precedents and relevant written provisions to support both sides. In these easier cases, one resolution is pretty obviously the wiser and most fair and most consistent with the highest constitutional principles.

That was the kind of case the Supreme Court decided Monday. Caperton v. Massey Coal Co. was the official name. But it was about Brent Benjamin. He is a West Virginia justice who refused to disqualify himself in the Caperton lawsuit.

To appreciate what was going on, let's try this.

Imagine you're involved in a legal dispute with a big company. At the trial, you proved your case. The company was ordered to pay back the money you lost because of its fraud.

Imagine further, that the company appealed to your state's supreme court. In the meantime, however, there would be a judicial election, and the head of the company you had successfully sued decided to get involved. In fact, he spent $3 million helping to defeat a sitting justice and elect the challenger.

Imagine now, that when your case gets to the state supreme court, your lawyer asks the newly elected justice to recuse himself. I.e., to remove himself from the case and to let the other justices decide the appeal without him. Your lawyer argues that the new justice shouldn't be ruling on a case involving someone who just spent $3 million to get him elected. But the new justice insists on participating.

Finally, imagine that the state supreme court decides the case by a 3-2 vote. And it's the new justice's vote that made the difference. Unfortunately, but not unexpectedly, he voted in favor of his benefactor's company. So the verdict you won at trial against the company has been overturned.

Of course, you can't believe that's fair. How could that justice be allowed to rule on your lawsuit against the company that just spent $3 million to get him elected? Your lawyer complains to the United States Supreme Court that your federal constitutional guarantee to due process was violated. That Court agrees to hear your appeal.

That is
the Caperton case that the Supreme Court decided Monday. And only a bare 5-4 majority of the Court's Justices found that the state justice should have recused himself. More than that, the Court divided along ideological grounds--liberals versus conservatives. The 4 liberal Justices voted that constitutionally guaranteed due process required the state justice to recuse himself under the extreme facts of the case. The 4 conservative Justices saw no due process problem. According to them, the Constitution was not offended by a state judge ruling on a matter involving his $3 million dollar election supporter. The liberals won because swing voter, Justice Anthony Kennedy, sided with them.

How is the right to a fair hearing before an impartial judge a liberal versus conservative issue? Of course it's not. Or it shouldn't be. But maybe there's something else.

Maybe the vote at the Supreme Court is really about sympathies for or against the defendant. It's a big coal company. Or maybe it's really about sympathies for or against the state justice in question. He is a Republican. And the sitting state justice he challenged and defeated, with the help of the big coal company, is a Democrat. Could the vote at the Supreme Court reflect such crass partisan politics?

What did the Justices say in their opinions?

Justice Kennedy emphasized that this was an extreme case. Among the crucial factors was the enormous amount spent to help elect the new state justice. The timing of the expenditure--i.e., while the appeal was pending. And the fact that the benefactor of the state justice was directly involved in the case--i.e., not just some person or entity with some interest in the outcome.

The common standard under rules of judicial ethics prohibits a judge from participating in a case when reasonable people would question that judge's impartiality. Under that standard, the state justice clearly should have recused himself. But the Supreme Court decides what the federal Constitution requires, not the rules of judicial ethics. That is, what does due process require? Stated otherwise, what does fundamental fairness demand, or prohibit?

In his opinion for the Court's majority, Justice Kennedy wrote that due process demands that a judge recuse himself when--and only when--there is a real probability of bias. As he restated it: when there is a substantial risk of actual bias on the part of the judge. Kennedy and the 4 liberals (Stevens, Souter, Ginsburg, and Breyer) concluded that there was such a risk in this extreme case. The state justice should not have participated.

The 4 dissenting Justices spoke through Chief Justice John Roberts. Joined by the other conservatives on the Court (Scalia, Thomas, and Alito), Roberts' main point was that
the majority failed to articulate a clear standard for deciding these types of cases, and that it would be very difficult to do so. To demonstrate his point, Roberts listed 40 questions about the standard that the majority did apply in this case.

(It is hard to read Roberts' dissenting opinion without getting the impression that he's more a lawyer advocating for a particular position, than a judge trying to resolve an issue. It reminds me of students who write "research" papers that are really arguments for opinions they've already held, rather than conclusions actually reached after disinterested study of the questions supposedly being examined.)

In any event, Roberts is undoubtedly correct that the majority's standard is not particularly clear. At the least, it will not clearly provide the answer to future, more difficult, closer cases. BUT, that is an argument for a clearer standard. For a standard more readily applied. It is NOT an argument against the majority's conclusion that the state justice in Caperton should have recused himself. It is not an argument against the proposition that basic due process DOES require judges to recuse themselves in similarly extreme cases.

But beyond that, there is a deeper flaw in Roberts' dissent. And he's a smart fellow. He knows it. The majority's standard is not particularly clear? It will take other cases to clarify the standard? Come on! Under that argument, precious little would ever have been decided by the Supreme Court. That's an argument for judicial paralysis. For constitutional paralysis.

Let's see. The Constitution's guarantee against unreasonable searches. Hmm, "unreasonable?" The Supreme Court certainly did not--in the past or yet--establish a clear standard which would resolve all future cases.

The right against compelled self-incrimination. Hmm, "compelled?" Struggled with that one for a long time, and still does.

Due process. Hmm, what process is "due?" It only took about 100 years from the adoption of the 14th Amendment for the Court to decided that jury trials, the assistance of counsel, the right to confront adverse witnesses, the right against double jeopardy, the self-incrimination privilege, and other protections we now take for granted were part of the process required as "due" in all criminal cases. And that standard continues to be refined in many cases before the Court every year.

Then there are the standards for what speech, press and religious exercise are "free." Oh, and that's true even though the Constitution literally allows "no law" prohibiting those freedoms. The Court has never stopped trying to refine the standard for "no law"--since the literal standard used by the Framers wasn't really so clear either!

And of course there's the 2d Amendment. The language and the case law haven't exactly provided clarity.

What about "equal" protection?

Okay, we could go on ad nauseam. But the point should be clear. Standards rarely are. And even when they are, they are repeatedly refined as the cases and the times require. So this objection of Roberts and the 3 who joined him in dissent is pretty lame.

At least it is lame as an argument against deciding whether the West Virginia justice should have recused himself. Yes, he should have. As a matter of basic due process. Now, Roberts et. al., argue for a better standard if you think the majority's was not clear enough.

One final observation. There was the other point emphasized in Roberts' dissenting opinion. That the majority's decision will undermine confidence in the judiciary. Apparently, the Supreme Court deciding that a state justice was wrong to participate in a case and should have recused himself will hurt the reputation of courts and judges.

Well, no. What undermines confidence in the judiciary and hurts the reputation of courts and judges is a judge whose impartiality is highly suspect. A judge on the state's highest court who sits on a case involving the $3 million supporter of his recent election to the bench. (Let alone a judge who then votes to overturn a judgment against that benefactor.)

What also undermines confidence in the judiciary is a United States Supreme Court divided along politically ideological lines in a case such as this. Where only a bare majority say that that state judge should have recused himself. And where the Supreme Court Justices who sided with the state judge just happen to be aligned with his political party and with his more conservative politics.

As I said at the outset, this was not a difficult case. How was it just 5-4? And how was it divided along politically ideological grounds?

Just another illustration of the need for a truly great new Justice or two , to help raise the level of this Court's decisionmaking.