If You Speak Up, Must You Stand Down: The Limits of Caperton

Richard M. Esenberg, Marquette University

Abstract

In Caperton v. A.T. Massey Coal Company, the United States Supreme Court announced a broad duty of judges to recuse themselves when they have an interest in connection with a case that creates an “unconstitutional potential for bias.” This potential may exist when “under a realistic appraisal of psychological tendencies and human weakness,” a judge may be unable to “hold the balance nice, clear and true.” In Caperton itself, a state supreme court justice was held to have a duty to recuse himself from a case involving a company whose CEO had spent approximately three million dollars in support of his election.

While the Court repeatedly emphasized that the case was “unusual,” “rare” and extraordinary,” it is not at all clear that the matter was that exceptional and it is very clear that the standard announced by the Court is rather protean, potentially applicable in many other circumstances.

I argue that the limits of Caperton – and limits are precisely what it needs – are to be found in the Court’s recent election law jurisprudence. These cases tell us something about the relationship between the right of free speech in judicial elections and the need to ensure an impartial judiciary. In particular, they suggest that, if states are going to elect judges, the voters are entitled to relevant information regarding judicial candidates, including information regarding those candidate’s legal and political perspectives. They suggest that interested persons have a right to participate in these campaigns and that a judge’s awareness of the potential electoral impacts of the positions that she takes and the decisions that she makes do not create a due process problem. Given the ways in which a broad reading of Caperton’s duty of recusal will impair these rights, I urge some reasonable limiting principles.