Monday, June 8, 2009
The United States Supreme Court, in a 5-4 opinion issued today, has held that "in all the circumstances of this case, due process requires recusal." The case involves Justice Brent Benjamin, now the Chief Justice of the West Virginia Supreme Court of Appeals (pictured below).
As previously discussed here, the Court had certified the question as:
The Court reversed the West Virginia Supreme Court in perhaps a predictable split given the oral argument (discussed here): KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion.
For the Court, Kennedy poses the issue as "“under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented,” citing Withrow v. Larkin, 421 U. S. 35, 47 (1975). Applying that standard, he writes that "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case."
Opinion at 14. The Court addresses the "floodgates" argument by reasserting that the facts before the Court are "extreme by any measure," Opinion at 17, but Roberts' dissenting opinion lists a series of 40 numbered issues (often with multiple questions) which illustrate both "floodgates" rhetoric and "slippery slope" rhetoric including:
(question 20) Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias? How would we measure whether such support is disproportionate?
(question 34) What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983? What statutes of limitation should be applied to such suits?
The Court's opinion reaffirms that due process establishes the minimum requirements and that state codes of judicial conduct may adopt more rigorous recusal standards, Opinion at 19.