BY MATTHEW HUTCHINS
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The Harvard Law Review is usually the leading predictor of the actions of the Supreme Court, but this time John Grisham beat it to the punch. Grisham’s latest legal thriller, The Appeal, borrowed its story of a judge captured by a wealthy local businessman from the facts of the case of Caperton v. A.T. Massey Coal Co., which recently made its way from the West Virginia Supreme Court of Appeals to the Supreme Court of the United States.
So when the Law Review held its forum on December 7th, it could only hope that the legal experts it had assembled would provide a scholarly addendum to the recent Supreme Court decision. The panel included Prof. Adrian Vermeule ’93, who wrote a forward for the volume titled “System Effects and the Constitution,” Prof. Lawrence Lessig, Prof. Pamela S. Karlan of Stanford Law School, and Prof. Penny J. White of the University of Tennessee, Knoxville, who was formerly a Justice of the Tennessee Supreme Court.
In Caperton, the Court was asked to consider whether it was improper for Justice Brent Benjamin to sit in a case which involved Don Blankenship, the CEO of A.T. Massey, when it was Blankenship who had provided the financial support for Benjamin to win an election campaign and a post on the state’s high court. The investment of over $3 million in Benjamin’s campaign bore fruit for Blankenship when a $50 million verdict against his company was overturned on its appeal to the West Virginia high court. When one justice recused himself for having made strongly negative public statements about Blankenship and another recused himself after vacation photos of him with Blankenship in the French Riviera surfaced, it was Justice Benjamin’s vote that was pivotal in creating a 3-2 majority to overturn the verdict.
The Supreme Court’s 5-4 opinion held that Justice Benjamin should have recused himself, and that the impropriety of sitting on the case was sufficient to create a constitutional defect in the appeal of the case, remanding the case to West Virginia for further consideration. Prof. White expressed exasperation that the Court could come out so deeply divided on a case that appeared to have a clear cut answer. The dissent, by Chief Justice Roberts, posed forty questions to the majority asking for guidance in the difficult area of election finance and review of recusal decisions; to White, each of these questions could be given an clear answer, “so long as you keep your eye on the fundamental rights of the litigant to a fair trial.” To White, this was the most important emphasis of the majority’s opinion, and for the lawyers and judges seeking to conform their conduct to ethical standards will remain a compass to guide their conduct. White also noted that footnote 68 of Prof. Lessig’s comment rightly expressed surprise that the Court’s opinion failed to actually rebuke Justice Benjamin for conduct that would not be acceptable under any set of recusal standards, and instead only commended his “careful responses to recusal motions.” Lessig, who is the director of the Edmond J. Safra Center for Ethics, said that even if Justice Benjamin really believed he could sit on the case without being biased, he is still a cad for having done so due to the injury his action did to the public perception of the judiciary as an institution.
Prof. Vermeule expressed fascination with the instability created by offsetting biases of the members of the West Virginia Court. In his forward, he addressed the emergent system dynamics through which a system can have properties that are not characteristic of the individual elements that compose it. These emergent properties can then lead to results that are counter-intuitive, such as the possibility that an undemocratic process of judicial review could provide a necessary component of a vigorous constitutional democracy. The situation in Caperton was, to Vermeule, a “nightmare of aggregation,” whereby the system dynamics created by biased players lead to the possibility that any single biased judge could end up providing the swing vote that makes the aggregate decision of the court reflect that one individual’s bias. In the opposite scenario, which Vermeule calls the “miracle of aggregation,” biased members of a body cancel each other out, leaving an objective party in the position of casting the decisive vote.1
Professor Richard Fallon, who moderated the panel, questioned whether it would be appropriate for a principled individual to change their vote to offset the vote of anothermember of a panel who was known to be biased. Prof. Vermeule said that this would fall under the rubric of what philosophers call a tragic choice, giving up objectivity and yet hoping for a miracle of aggregation to lead to the virtuous result. Prof. Karlan suggested that in this situation a judge should rely on the norm of sincerity and follow the position that their objective faculties show to be the correct one. Prof. Lessig expressed doubt as to whether the norm of sincerity has any real force in the decisions of a court. For Vermeule, this domain involves difficult questions of role morality, since if one member of a court has notably departed from the norm of sincerity and displayed bias, it has the capacity to influence the actions of the other members and the morality of the choices they make.
For Professor Karlan, the case was rightly decided not only because it was the correct application of the law, but also because once the Court granted certiorari it was put in a position of needing to take a moral stand against impropriety. The assertion of power by the Supreme Court to intervene in setting the standards for the conduct of judicial elections can serve as an important check against state legislatures, said Karlan. To Karlan, the standards for judicial elections have become so watered down that the people should reject them and adopt an alternative method of selecting judges. It seems that in the wake of Caperton the important legal and political questions revolving around judicial elections have become only more unsettled and yet more pressing and relevant.
1. Query whether this in fact reflects the role of Justice Kennedy in the Court’s Caperton majority. See Vermeule, 123 Harv. L. Rev. 4, 41 (2009).