The Supreme Court Breakfast Table

What Anthony Kennedy Sees Is Law
An email conversation about the news of the day.
June 23 2009 6:38 PM

The Supreme Court Breakfast Table

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Dahlia and Linda—Dahlia asks whether we have any comments on a few of the recent decisions, including the DNA case (District Attorney's Office v. Osborne) and the judicial recusal case (Caperton v. Massey Coal). What I found interesting was to read those two seemingly unrelated cases in tandem. Each involves a plaintiff seeking relief from an unjust state practice by asking the court to recognize a new federal due-process right. In both cases, Justices Stevens, Souter, Ginsburg, and Breyer would recognize a federal due-process right. In both cases Justices Roberts, Scalia, Thomas, and Alito would not. The difference in outcome—Caperton wins; Osborne loses—is produced by the vote of Anthony Kennedy, the only justice who finds a due-process right in one case and not the other.

In each case, Chief Justice Roberts writes an opinion arguing that it would be a mistake to "constitutionalize" the state-law practices at issue. The two opinions are strikingly similar. But one (Osborne) is the majority opinion and the other (Caperton) is the dissenting opinion.

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Kennedy holds for the court in Caperton that an arguably biased state court judge's refusal to recuse himself from a case can raise a federal due process issue. The facts are notorious. Caperton won a $50 million damage judgment against Massey Coal. While Massey Coal's appeal was pending in the West Virginia Supreme Court, Massey's chairman spent more than $3 million getting a new justice elected to that court—a justice who cast the deciding vote in Massey's favor, overturning Caperton's trial court victory. (It's hard to believe, but the facts are even worse than that brief summary suggests, as Dahlia's account of the oral argument details.) The majority opinion is an easy write: How could it possibility be consistent with due process to require a litigant to have his case decided by a judge who was put on the court by his opponent's money?

Chief Justice Roberts' dissenting opinion in Caperton argues that it would be a mistake to use this one injustice—no matter how outlandish—as a reason to constitutionalize state law on judicial recusals. However appealing Caperton's claim of unfairness, a U.S. Supreme Court decision rectifying this injustice would turn the countless (hundreds a year, at least) state court recusal motions into federal constitutional claims requiring adjudication in federal courts, often in the U.S. Supreme Court.

Roberts writes much the same opinion decrying the extension of due process to a new area in Osborne,the DNA case. But this time he has Kennedy's vote, so his opinion is for the court's majority. Convicted criminal William Osborne wants the state of Alaska to permit testing (at Osborne's own expense) of DNA evidence that could definitively prove his guilt or innocence. For reasons that are rather inscrutible, Alaska has refused to let this DNA testing be done. Roberts writes an opinion that sounds a lot like his Caperton dissent. In his Caperton dissent, Roberts write "… opening the door to recusal claims under the Due Process Clause" would require federal courts to come up with a code of rules for state judges recusal obligations." In his Osborne majority opinion, Robertssays, "If we extended substantive due process into this area, we would … be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA." But this time, Kennedy agrees.

Why does Kennedy alone believe that Caperton's claim to a fair bench is an appropriate matter for constitutional due process adjudication while Osborne's request for access to DNA evidence is not? And if there is a difference, does Justice Kennedy get it backward? If the two claims for due process recognition were to be distinguished, it would seem to me that Osborne might have the stronger case. Admittedly, there is plausibility to the chief justice's argument that the Alaska courts might still afford Osborne the DNA testing he seeks and might come up with a good reason if and when they finally turn him down. It all sounds perfectly plausible as you read the somewhat opaque opinion. But when I finish the opinion, I find myself thinking, "Wait, why is it that Alaska won't let him test the DNA evidence at his own expense?" And I can't remember a coherent reason. It may be fine to tell Osborne he needs to make an additional presentation to the Alaska courts. But why not go ahead and say right now that at the end of the day he will have a federal due process right to test evidence that could prove him innocent unless the state comes up with a far better excuse than they have so far?

Although Roberts suggests in his Osborne opinion a few issues federal courts would have to determine if the court were to recognize a right to DNA testing, those questions don't seem very numerous or difficult. In Caperton, on the other hand, Roberts makes a far more persuasive showing that once you make state judicial recusals a matter of federal constitutional law, the line-drawing problems are bewilderingly complex. Roberts lists 40 difficult questions left open ("How much money is too much?" … "What type of support is disqualifying?" … "What if the [judicial] candidate draws 'disproportionate' support from a particular racial, religious, ethnic or other group and the case involves an issue of particular importance to that group? What is the proper remedy?")

As I said at the outset, four justices would have recognized due process claims in both cases, and four would have rejected the claims in both. If you are going to distinguish between the two, Osborne's due process claim to his DNA test seemed to me less problematic than Caperton's due process claim for federal review of state recusal decisions. Kennedy saw it the opposite way. And what he sees is law.

Best,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

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