The Supreme Court talks about judicial bias. Sort of.

The law, lawyers, and the court.
June 8 2009 6:53 PM

The Great Caperton Caper

The Supreme Court talks about judicial bias. Kinda.

Sonia Sotomayor. Click image to expand.
Sonia Sotomayor.

Today the Supreme Court decided the odd, Grisham-like story of Caperton v. Massey finding that a justice on the West Virginia Supreme Court should have recused himself in an appeal involving a party who spent millions of dollars to put him on the bench. But lost in all the high-power judgery is this fascinating fact: Both the majority and the dissent are pretty worried about judicial bias, the appearance of judicial bias, confidence in the integrity of the judiciary, and what to do about public confidence in human-seeming judges. These are precisely the issues Judge Sonia Sotomayor has openly grappled with in her now-controversial speeches about race, gender, and judging. Indeed, if you read the opinion and the dissent in Caperton alongside Sotomayor's famous 2001 Berkeley speech, you can't help but see that she was merely giving voice to the same judicial anxieties aired by the justices today. So perhaps instead of accusing her of racism, bias, and generalized unfitness to judge, we should recognize that she, like her soon-to-be-colleagues at the Supreme Court, understands that talking about bias aloud is ultimately better than whispering about it from the shadows.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

In his opinion for the five-judge majority today, Justice Anthony Kennedy—who was more or less born to author this opinion, touching as it does on Big Issues and Public Sensibilities—lays out the "extraordinary situation" in the case: In August 2002, a West Virginia jury returned a verdict finding A.T. Massey Coal Co. liable to the tune of $50 million for fraudulent misrepresentation, concealment, and tortious interference with contractual relations against Hugh Caperton and Harman Development Corp. While the appeal was still pending, Massey's CEO, Don Blankenship, spent $3 million of his own money to remove one state supreme court justice and seat another—his contributions amounting to more than two-thirds of all the funds raised. Brent Benjamin won the election, then refused to recuse himself from Blankenship's appeal, ultimately casting a vote in favor of Massey in a 3-2 verdict overturning the $50 million jury verdict.

Justice Benjamin insisted he did nothing wrong in refusing to remove himself from the case, having searched his own soul and motivations and determined that he had no "direct, personal, substantial, pecuniary interest in this case," and the Supreme Court today declined to second-guess him. The Supreme Court disagreed, however, that the test for recusal stops at the judge's own perceptions of his bias, recognizing that "there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent." The majority concluded that in this case, "Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case." After today, "the probability of bias" is the new constitutional test.

The most intriguing aspect of Kennedy's majority opinion is his meditation on judicial bias, which sounds strikingly like the all-too-public self-scrutiny of Sonia Sotomayor. Like Judge Sotomayor, Kennedy is struck by the process wherein judges attempt to monitor their own efforts at objectivity. He first quotes Benjamin Cardozo: "The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth."

Then he writes, in a passage that is strikingly resonant with Sotomayor's much-maligned Berkeley speech, about how the average judge goes about deciding a case: "The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work." Experience? Common sense? Can "empathy" be far behind?

Sotomayor put it this way in 2001, quoting Judge Miriam Cederbaum: "[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cederbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. ... I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought."

Kennedy today openly worries that "there are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work." Sotomayor betrayed the same anxiety about undetected bias when she said in 2001, "I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I re-evaluate them and change as circumstances and cases before me requires."

Chief Justice John Roberts, writing on behalf of the four dissenters, is clear that he is also worried about the appearance of judicial bias and judicial integrity. His objection is principally to Kennedy's effort to create an "objective" standard for bias, which, he contends, "fails to provide clear, workable guidance for future cases." So Roberts spits out 40 questions left open by today's ruling (20 questions being for rank amateurs). Then Justice Antonin Scalia does him one better by quoting the Babylonian Talmud, Tractate Aboth, Chapter 5, Mishnah 22. (Scalia is clearly teaching bar mitzvah classes somewhere this year.) Scalia also acknowledges that judicial bias is a problem: "In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly." His dissent focuses on the fact that the court should not have stepped in to "correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule."

If Justice Kennedy's majority opinion reads like a love letter to soon-to-be Justice Sotomayor, the Scalia and Roberts dissents also do nothing but support her. Both make a point of saying that painstaking inquiries into the chimera of judicial bias ultimately harm the judiciary as a whole. So, for instance, Roberts warns, "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."

So when Shelby Steele snorts in the Wall Street Journal today that "throughout her career Judge Sotomayor has demonstrated a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy" (with no evidence beyond the Berkeley speech), is he not, as the chief justice openly frets, diminishing the confidence of the American people in the fairness of the courts? When her critics reduce Sotomayor's 18-year judicial career to a sound bite, does that not, as Roberts fears, undermine the "presumption of honesty and integrity in those serving as adjudicators."

Nobody is saying in Caperton—not the majority and not the dissenters—that judges are always perfectly neutral. Indeed, everyone agrees, although perhaps not with the effusiveness of Kennedy, that "experience and common sense" and other non-algebraic/geometric intellectual principles can sometimes influence judicial decision-making. Which means that everybody in Caperton is almost but not quite brave enough to say what Sonia Sotomayor has said aloud for years now: That being neutral is hard, perhaps ultimately impossible work and that the best judges are vigilant about trying to stay that way.

Sotomayor's Berkeley speech is nothing more than a case study for Kennedy's long meditation on the judicial craft and a check against Roberts' warning about trashing the judiciary with false claims of bias. If anything, her candor should guarantee her a seat at the high court as someone who has spent years grappling with an issue most judges would prefer to pretend away.

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