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The Great Caperton CaperThe Supreme Court talks about judicial bias. Kinda.

By Dahlia LithwickPosted Monday, June 8, 2009, at 6:53 PM ET

Read more from Slate's coverage of Sonia Sotomayor’s nomination.

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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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Dahlia Lithwick is a Slate senior editor.

Photograph of Sonia Sotomayor by Alex Wong/Getty Images.

COMMENTS

Roberts's default mode of operation, it is by now clear—he really does do this often—is to pronounce himself sympathetic to particular goals and aspirations and therefore compelled to oppose interpretations of law that (in this case, clearly) advance the goal. That's because up is down, left is right, black is white, and turning something upside-down is turning it right-side-up.

So we are treated to the spectacle of the chief justice of our highest court declaring, presumably with a straight face, that a ruling that constitutional due process bars judges who have a glaring conflict of interest from participating in the outcome of the case will diminish the confidence of the American people in the fairness and integrity of their courts.

What the public doesn't know won't hurt them, I guess. And what they do know won't either, because pretenses and legal fictions of the variety that Roberts prefers enhance the confidence of the American people in the fairness and integrity of their courts. At least those American people who've had a few at their local bar.

Most of Roberts's 40 questions are easy to answer. Others are no more difficult to answer than such proverbial legal standards as "reasonableness" that are bedrock foundations of American law.

What Roberts is really concerned about here is not that required recusal for conflict of interest will diminish the confidence of the American people in the fairness and integrity of their courts but instead that it will itself bring our judicial system into what he says is undeserved disrepute, although the facts in Caperton do raise the possibility that some of the disrepute is deserved. Saint that he is, he nonetheless is not quite forthright here about his true concern.

-- la savante
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Assume for the sake of argument that the Supreme Court is right and that a justice whose campaign was financed mostly by one person should recuse himself/herself from cases involving that person. Fine, but what if the candidate loses? What if the WV businessman spent millions to defeat a sitting justice, but the justice he opposed still won? Could such a justice render an impartial verdict, or would that justice still be required to recuse himself/herself from the case? If the idea of potential bias is the standard, then it would seem that anyone who was largely supported or opposed by one person or group would have to recuse.

But, suppose you moved that from the financial to the policy issue. Suppose that a group of pro-life or pro-choice activists supports and elects a justice. Should that justice then recuse himself/herself from all issues involving abortion, due to the perception of bias?

-- KevClark64
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