The Supreme Court ponders when your right to a fair trial collides with their right to be divine.

Oral argument from the court.
March 3 2009 8:31 PM

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The Supreme Court ponders when your right to a fair trial collides with their right to be divine.

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Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Judge Brent Benjamin
Judge Brent Benjamin

In 2002, a West Virginia jury determined that the A.T. Massey Coal Co. had fraudulently forced competitor Hugh Caperton into bankruptcy. Massey's CEO, Don Blankenship, promptly appealed, having warned Caperton: "We spend a million dollars a month on lawyers, and we'll tie you up for years." West Virginia has only one appellate court—its Supreme Court. Concerned about his odds on appeal, Blankenship spent $3 million of his own money to take out sitting Justice Warren McGraw by backing his opponent in a 2004 judicial election.

Blankenship's $3 million represented 60 percent of the total funding of a 527 group called (what else?) "And for the Sake of the Kids." The group ran creepy election ads accusing McGraw of (what else?) setting a pedophile loose in the schools. McGraw lost his seat on the state high court to an unknown lawyer called Brent Benjamin. And in a Disney-like rotation of the circle of life, the newly elected Chief Justice Benjamin then voted 3-2 to reverse the verdict against Massey. Asked to recuse himself from hearing the case, Benjamin refused. Twice.

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The Supreme Court is in a tough spot in Caperton v. A.T. Massey. The legal claim here is that Americans have a due-process right to a judicial system untainted by the appearance or likelihood of bias. And appearances alone are sometimes enough. Indeed, the facts here are so completely grotesque, they cause the usually mild-mannered John Paul Stevens to proclaim: "We have never confronted a case as extreme as this before. This fits the standard that Potter Stewart articulated when he said, 'I know it when I see it.' "

But the extravagant weaselliness of Chief Justice Benjamin sits uneasily beside an almost complete absence of law that might curb it. The advocates struggle to scrape together a handful of precedents, along with bits of the Constitution's due-process clause, in what rapidly starts to look like a constitutional comb-over.

Justice Sandra Day O'Connor, who has been preoccupied since her retirement with judicial integrity, is in the court today to stare down anyone who doesn't think the public decline in respect for the judiciary is a major problem. Polls show that the public believes money influences judges. The public are no dopes.

The clash of two titans of the Supreme Court bar—former Solicitor General Theodore Olson and seasoned lawyer Andrew Frey—is a long blur of interruptions, evasions, and ellipses. As Olson, representing Caperton, attempts to wax lyrical about the "constitutional right to a fair tribunal," Justice Antonin Scalia cuts him off to ask when the court has ever promised anything like that.

Olson says that an ordinary person may begin to doubt the neutrality of a judge if, oh, say, "that judge has just been put on the bench during the pendency of the trial of the case by his opponent's contribution of $3 million …" Scalia says Olson has it all wrong. When people contribute millions of their own dollars to judicial-election campaigns, it's because "they want me to be a good judge … and I'm showing my gratitude by being a good judge." That's the only expectation they have.

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