Editor's note: This case is cogent to the judges' conflicts of interest evolving in various Probate Court of Cook County cases. Lucius Verenus, Schoolmaster, ProbateSharks.com
---------- Forwarded message ----------From:Date: Thu, 26 Nov 2015 14:46:17 +0000 (UTC)Subject: supreme court case about recusal that can be helpful in your caseTo: nathanadvisors@gmail.comalso relevant for Ginsburg and Kagan regarding same sex "marriage" butthere is no supreme supreme court that can be used on themUnited States Supreme CourtCAPERTON ET AL. v. A. T. MASSEY COAL CO., INC., ET AL., (2009)No. 08-22Argued: March 3, 2009 Decided: June 8, 2009After a West Virginia jury found respondents, a coal company and itsaffiliates (hereinafter Massey), liable for fraudulentmisrepresentation, concealment, and tortious interference withexisting contractual relations and awarded petitioners (hereinafterCaperton) $50 million in damages, West Virginia held its 2004 judicialelections. Knowing the State Supreme Court of Appeals would considerthe appeal, Don Blankenship, Massey's chairman and principal officer,supported Brent Benjamin rather than the incumbent justice seekingreelection. His $3 million in contributions exceeded the total amountspent by all other Benjamin supporters and by Benjamin's owncommittee. Benjamin won by fewer than 50,000 votes. Before Masseyfiled its appeal, Caperton moved to disqualify now-Justice Benjaminunder the Due Process Clause and the State's Code of Judicial Conduct,based on the conflict caused by Blankenship's campaign involvement.Justice Benjamin denied the motion, indicating that he found nothingshowing bias for or against any litigant. The court then reversed the$50 million verdict. During the rehearing process, Justice Benjaminrefused twice more to recuse himself, and the court once againreversed the jury verdict. Four months later, Justice Benjamin filed aconcurring opinion, defending the court's opinion and his recusaldecision.Held: In all the circumstances of this case, due process requiresrecusal. Pp. 6-20. (a) The Due Process Clause incorporated the common-law rulerequiring recusal when a judge has "a direct, personal, substantial,pecuniary interest" in a case, Tumey v. Ohio, 273 U. S. 510, 523, butthis Court has also identified additional instances which, as anobjective matter, require recusal where "the probability of actualbias on the part of the judge or decisionmaker is too high to beconstitutionally tolerable," Withrow v. Larkin, 421 U. S. 35, 47. Twosuch instances place the present case in proper context. Pp. 6-11. (1) The first involved local tribunals in which a judge hada financial interest in a case's outcome that was less than what wouldhave been considered personal or direct at common law. In Tumey, avillage mayor with authority to try those accused of violating a lawprohibiting the possession of alcoholic beverages faced two potentialconflicts: Because he received a salary supplement for performingjudicial duties that was funded from the fines assessed, he received asupplement only upon a conviction; and sums from the fines weredeposited to the village's general treasury fund for villageimprovements and repairs. Disqualification was required under theprinciple that "[e]very procedure which would offer a possibletemptation to the average man as a judge to forget the burden of proofrequired to convict the defendant, or which might lead him not to holdthe balance nice, clear and true between the State and the accused,denies the latter due process of law." 273 U. S., at 532. In Ward v.Monroeville, 409 U. S. 57, a conviction in another mayor's court wasinvalidated even though the fines assessed went only to the town'sgeneral fisc, because the mayor faced a " ' possible temptation' "created by his "executive responsibilities for village finances." Id.,at 60. Recusal was also required where an Alabama Supreme Courtjustice cast the deciding vote upholding a punitive damages awardwhile he was the lead plaintiff in a nearly identical suit pending inAlabama's lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813.The proper constitutional inquiry was not "whether in fact [thejustice] was influenced," id., at 825, but "whether sitting on [that]case ... ' "would offer a possible temptation to the average ... judgeto ... lead him not to hold the balance nice, clear and true," ' "ibid. While the "degree or kind of interest ... sufficient todisqualify a judge ... '[could not] be defined with precision, ' "id., at 822, the test did have an objective component. Pp. 7-9. (2) The second instance emerged in the criminal contemptcontext, where a judge had no pecuniary interest in the case but haddetermined in an earlier proceeding whether criminal charges should bebrought and then proceeded to try and convict the petitioners. In reMurchison, 349 U. S. 133. Finding that "no man can be a judge in hisown case," and "no man is permitted to try cases where he has aninterest in the outcome," id., at 136, the Court noted that thecircumstances of the case and the prior relationship required recusal.The judge's prior relationship with the defendant, as well as theinformation acquired from the prior proceeding, was critical. Inreiterating that the rule that "a defendant in criminal contemptproceedings should be [tried] before a judge other than the onereviled by the contemnor," Mayberry v. Pennsylvania, 400 U. S. 455,466, rests on the relationship between the judge and the defendant,id., at 465, the Court noted that the objective inquiry is not whetherthe judge is actually biased, but whether the average judge in hisposition is likely to be neutral or there is an unconstitutional "'potential for bias,' " id., at 466. Pp. 9-11. (b) Because the objective standards implementing the Due ProcessClause do not require proof of actual bias, this Court does notquestion Justice Benjamin's subjective findings of impartiality andpropriety and need not determine whether there was actual bias.Rather, the question is whether, "under a realistic appraisal ofpsychological tendencies and human weakness," the interest "poses sucha risk of actual bias or prejudgment that the practice must beforbidden if the guarantee of due process is to be adequatelyimplemented." Withrow, 421 U. S., at 47. There is a serious risk ofactual bias when a person with a personal stake in a particular casehad a significant and disproportionate influence in placing the judgeon the case by raising funds or directing the judge's electioncampaign when the case was pending or imminent. The proper inquirycenters on the contribution's relative size in comparison to the totalamount contributed to the campaign, the total amount spent in theelection, and the apparent effect of the contribution on the outcome.It is not whether the contributions were a necessary and sufficientcause of Benjamin's victory. In an election decided by fewer than50,000 votes, Blankenship's campaign contributions--compared to thetotal amount contributed to the campaign, as well as the total amountspent in the election--had a significant and disproportionateinfluence on the outcome. And the risk that Blankenship's influenceengendered actual bias is sufficiently substantial that it "must beforbidden if the guarantee of due process is to be adequatelyimplemented." Ibid. The temporal relationship between the campaigncontributions, the justice's election, and the pendency of the case isalso critical, for it was reasonably foreseeable that the pending casewould be before the newly elected justice. There is no allegation of aquid pro quo agreement, but the extraordinary contributions were madeat a time when Blankenship had a vested stake in the outcome. Just asno man is allowed to be a judge in his own cause, similar fears ofbias can arise when--without the other parties' consent--a man choosesthe judge in his own cause. Applying this principle to the judicialelection process, there was here a serious, objective risk of actualbias that required Justice Benjamin's recusal. Pp. 11-16. (c) Massey and its amici err in predicting that this decisionwill lead to adverse consequences ranging from a flood of recusalmotions to unnecessary interference with judicial elections. Theypoint to no other instance involving judicial campaign contributionsthat presents a potential for bias comparable to the circumstances inthis case, which are extreme by any measure. And because the Statesmay have codes of conduct with more rigorous recusal standards thandue process requires, most recusal disputes will be resolved withoutresort to the Constitution, making the constitutional standard'sapplication rare. Pp. 16-20.___ W. Va. ___, ___S. E. 2d ___, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in whichSTEVENS, 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.HUGH M. CAPERTON, ET AL., PETITIONERS v.A. T. MASSEY COAL COMPANY, INC., ET AL.on writ of certiorari to the supreme court of appeals of west virginia[June 8, 2009] JUSTICE KENNEDY delivered the opinion of the Court. In this case the Supreme Court of Appeals of West Virginiareversed a trial court judgment, which had entered a jury verdict of$50 million. Five justices heard the case, and the vote to reverse was3 to 2. The question presented is whether the Due Process Clause ofthe Fourteenth Amendment was violated when one of the justices in themajority denied a recusal motion. The basis for the motion was thatthe justice had received campaign contributions in an extraordinaryamount from, and through the efforts of, the board chairman andprincipal officer of the corporation found liable for the damages. Under our precedents there are objective standards that requirerecusal when "the probability of actual bias on the part of the judgeor decisionmaker is too high to be constitutionally tolerable."Withrow v. Larkin, 421 U. S. 35, 47 (1975). Applying those precedents,we find that, in all the circumstances of this case, due processrequires recusal.I In August 2002 a West Virginia jury returned a verdict that foundrespondents A. T. Massey Coal Co. and its affiliates (hereinafterMassey) liable for fraudulent misrepresentation, concealment, andtortious interference with existing contractual relations. The juryawarded petitioners Hugh Caperton, Harman Development Corp., HarmanMining Corp., and Sovereign Coal Sales (hereinafter Caperton) the sumof $50 million in compensatory and punitive damages. In June 2004 the state trial court denied Massey's post-trialmotions challenging the verdict and the damages award, finding thatMassey "intentionally acted in utter disregard of [Caperton's] rightsand ultimately destroyed [Caperton's] businesses because, afterconducting cost-benefit analyses, [Massey] concluded it was in itsfinancial interest to do so." App. 32a, ¶10(p). In March 2005 thetrial court denied Massey's motion for judgment as a matter of law. Don Blankenship is Massey's chairman, chief executive officer,and president. After the verdict but before the appeal, West Virginiaheld its 2004 judicial elections. Knowing the Supreme Court of Appealsof West Virginia would consider the appeal in the case, Blankenshipdecided to support an attorney who sought to replace Justice McGraw.Justice McGraw was a candidate for reelection to that court. Theattorney who sought to replace him was Brent Benjamin. In addition to contributing the $1,000 statutory maximum toBenjamin's campaign committee, Blankenship donated almost $2.5 millionto "And For The Sake Of The Kids," a political organization formedunder 26 U. S. C. §527. The §527 organization opposed McGraw andsupported Benjamin. App. 672a-673a. Blankenship's donations accountedfor more than two-thirds of the total funds it raised. Id., at 150a.This was not all. Blankenship spent, in addition, just over $500,000on independent expenditures--for direct mailings and letterssoliciting donations as well as television and newspaperadvertisements--" 'to support ... Brent Benjamin.' " Id., at 184a,186a, 200a (bold typeface omitted) (quoting Blankenship's statecampaign financial disclosure filings). To provide some perspective, Blankenship's $3 million incontributions were more than the total amount spent by all otherBenjamin supporters and three times the amount spent by Benjamin's owncommittee. Id., at 288a. Caperton contends that Blankenship spent $1million more than the total amount spent by the campaign committees ofboth candidates combined. Brief for Petitioners 28. Benjamin won. He received 382,036 votes (53.3%), and McGrawreceived 334,301 votes (46.7%). App. 677a. In October 2005, before Massey filed its petition for appeal inWest Virginia's highest court, Caperton moved to disqualifynow-Justice Benjamin under the Due Process Clause and the WestVirginia Code of Judicial Conduct, based on the conflict caused byBlankenship's campaign involvement. Justice Benjamin denied the motionin April 2006. He indicated that he "carefully considered the basesand accompanying exhibits proffered by the movants." But he found "noobjective information ... to show that this Justice has a bias for oragainst any litigant, that this Justice has prejudged the matterswhich comprise this litigation, or that this Justice will be anythingbut fair and impartial." Id., at 336a-337a. In December 2006 Masseyfiled its petition for appeal to challenge the adverse jury verdict.The West Virginia Supreme Court of Appeals granted review. In November 2007 that court reversed the $50 million verdictagainst Massey. The majority opinion, authored by then-Chief JusticeDavis and joined by Justices Benjamin and Maynard, found that"Massey's conduct warranted the type of judgment rendered in thiscase." Id., at 357a. It reversed, nevertheless, based on twoindependent grounds--first, that a forum-selection clause contained ina contract to which Massey was not a party barred the suit in WestVirginia, and, second, that res judicata barred the suit due to anout-of-state judgment to which Massey was not a party. Id., at 345a.Justice Starcher dissented, stating that the "majority's opinion ismorally and legally wrong." Id., at 420a-422a. Justice Albright alsodissented, accusing the majority of "misapplying the law andintroducing sweeping 'new law' into our jurisprudence that may wellcome back to haunt us." Id., at 430a-431a. Caperton sought rehearing, and the parties moved fordisqualification of three of the five justices who decided the appeal.Photos had surfaced of Justice Maynard vacationing with Blankenship inthe French Riviera while the case was pending. Id., at 440a-441a,456a. Justice Maynard granted Caperton's recusal motion. On the otherside Justice Starcher granted Massey's recusal motion, apparentlybased on his public criticism of Blankenship's role in the 2004elections. In his recusal memorandum Justice Starcher urged JusticeBenjamin to recuse himself as well. He noted that "Blankenship'sbestowal of his personal wealth, political tactics, and 'friendship'have created a cancer in the affairs of this Court." Id., at459a-460a. Justice Benjamin declined Justice Starcher's suggestion anddenied Caperton's recusal motion. The court granted rehearing. Justice Benjamin, now in thecapacity of acting chief justice, selected Judges Cookman and Fox toreplace the recused justices. Caperton moved a third time fordisqualification, arguing that Justice Benjamin had failed to applythe correct standard under West Virginia law--i.e., whether "areasonable and prudent person, knowing these objective facts, wouldharbor doubts about Justice Benjamin's ability to be fair andimpartial." Id., at 466a, ¶8. Caperton also included the results of apublic opinion poll, which indicated that over 67% of West Virginiansdoubted Justice Benjamin would be fair and impartial. Justice Benjaminagain refused to withdraw, noting that the "push poll" was "neithercredible nor sufficiently reliable to serve as the basis for anelected judge's disqualification." Id., at 483a. In April 2008 a divided court again reversed the jury verdict,and again it was a 3-to-2 decision. Justice Davis filed a modifiedversion of his prior opinion, repeating the two earlier holdings. Shewas joined by Justice Benjamin and Judge Fox. Justice Albright, joinedby Judge Cookman, dissented: "Not only is the majority opinionunsupported by the facts and existing case law, but it is alsofundamentally unfair. Sadly, justice was neither honored nor served bythe majority." ___ W. Va. ___, ___, ___ S. E. 2d ___, ___; App. 633a.The dissent also noted "genuine due process implications arising underfederal law" with respect to Justice Benjamin's failure to recusehimself. ___ W. Va., at ___, n. 16, ___ S. E. 2d, at ___, n. 16; App.634a, n. 16 (citing Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813(1986); In re Murchison, 349 U. S. 133, 136 (1955)). Four months later--a month after the petition for writ ofcertiorari was filed in this Court--Justice Benjamin filed aconcurring opinion. He defended the merits of the majority opinion aswell as his decision not to recuse. He rejected Caperton's challengeto his participation in the case under both the Due Process Clause andWest Virginia law. Justice Benjamin reiterated that he had no " 'direct, personal, substantial, pecuniary interest' in this case.' "___ W. Va., at ___, ___ S. E. 2d, at ___; App. 677a (quoting Lavoie,supra, at 822). Adopting "a standard merely of 'appearances,' " heconcluded, "seems little more than an invitation to subject WestVirginia's justice system to the vagaries of the day--a framework inwhich predictability and stability yield to supposition, innuendo,half-truths, and partisan manipulations." ___ W. Va., at ___, ___ S.E. 2d, at ___; App. 692a. We granted certiorari. 555 U. S. ___ (2008).II It is axiomatic that "[a] fair trial in a fair tribunal is abasic requirement of due process." Murchison, supra, at 136. As theCourt has recognized, however, "most matters relating to judicialdisqualification [do] not rise to a constitutional level." FTC v.Cement Institute, 333 U. S. 683, 702 (1948). The early and leadingcase on the subject is Tumey v. Ohio, 273 U. S. 510 (1927). There, theCourt stated that "matters of kinship, personal bias, state policy,remoteness of interest, would seem generally to be matters merely oflegislative discretion." Id., at 523. The Tumey Court concluded that the Due Process Clauseincorporated the common-law rule that a judge must recuse himself whenhe has "a direct, personal, substantial, pecuniary interest" in acase. Ibid. This rule reflects the maxim that "[n]o man is allowed tobe a judge in his own cause; because his interest would certainly biashis judgment, and, not improbably, corrupt his integrity." TheFederalist No. 10, p. 59 (J. Cooke ed. 1961) (J. Madison); see Frank,Disqualification of Judges, 56 Yale L. J. 605, 611-612 (1947) (same).Under this rule, "disqualification for bias or prejudice was notpermitted"; those matters were left to statutes and judicial codes.Lavoie, supra, at 820; see also Part IV, infra (discussing judicialcodes). Personal bias or prejudice "alone would not be sufficientbasis for imposing a constitutional requirement under the Due ProcessClause." Lavoie, supra, at 820. As new problems have emerged that were not discussed at commonlaw, however, the Court has identified additional instances which, asan objective matter, require recusal. These are circumstances "inwhich experience teaches that the probability of actual bias on thepart of the judge or decisionmaker is too high to be constitutionallytolerable." Withrow, 421 U. S., at 47. To place the present case inproper context, two instances where the Court has required recusalmerit further discussion.A The first involved the emergence of local tribunals where a judgehad a financial interest in the outcome of a case, although theinterest was less than what would have been considered personal ordirect at common law. This was the problem addressed in Tumey. There, the mayor of avillage had the authority to sit as a judge (with no jury) to trythose accused of violating a state law prohibiting the possession ofalcoholic beverages. Inherent in this structure were two potentialconflicts. First, the mayor received a salary supplement forperforming judicial duties, and the funds for that compensationderived from the fines assessed in a case. No fines were assessed uponacquittal. The mayor-judge thus received a salary supplement only ifhe convicted the defendant. 273 U. S., at 520. Second, sums from thecriminal fines were deposited to the village's general treasury fundfor village improvements and repairs. Id., at 522. The Court held that the Due Process Clause requireddisqualification "both because of [the mayor-judge's] direct pecuniaryinterest in the outcome, and because of his official motive to convictand to graduate the fine to help the financial needs of the village."Id., at 535. It so held despite observing that "[t]here are doubtlessmayors who would not allow such a consideration as $12 costs in eachcase to affect their judgment in it." Id., at 532. The Courtarticulated the controlling principle:"Every procedure which would offer a possible temptation to theaverage man as a judge to forget the burden of proof required toconvict the defendant, or which might lead him not to hold the balancenice, clear and true between the State and the accused, denies thelatter due process of law." Ibid.The Court was thus concerned with more than the traditional common-lawprohibition on direct pecuniary interest. It was also concerned with amore general concept of interests that tempt adjudicators to disregardneutrality. This concern with conflicts resulting from financial incentiveswas elaborated in Ward v. Monroeville, 409 U. S. 57 (1972), whichinvalidated a conviction in another mayor's court. In Monroeville,unlike in Tumey, the mayor received no money; instead, the fines themayor assessed went to the town's general fisc. The Court held that"[t]he fact that the mayor [in Tumey] shared directly in the fees andcosts did not define the limits of the principle." 409 U. S., at 60.The principle, instead, turned on the " 'possible temptation' " themayor might face; the mayor's "executive responsibilities for villagefinances may make him partisan to maintain the high level ofcontribution [to those finances] from the mayor's court." Ibid. As theCourt reiterated in another case that Term, "the [judge's] financialstake need not be as direct or positive as it appeared to be inTumey." Gibson v. Berryhill, 411 U. S. 564, 579 (1973) (anadministrative board composed of optometrists had a pecuniary interestof "sufficient substance" so that it could not preside over a hearingagainst competing optometrists). The Court in Lavoie further clarified the reach of the DueProcess Clause regarding a judge's financial interest in a case.There, a justice had cast the deciding vote on the Alabama SupremeCourt to uphold a punitive damages award against an insurance companyfor bad-faith refusal to pay a claim. At the time of his vote, thejustice was the lead plaintiff in a nearly identical lawsuit pendingin Alabama's lower courts. His deciding vote, this Court surmised,"undoubtedly 'raised the stakes' " for the insurance defendant in thejustice's suit. 475 U. S., at 823-824. The Court stressed that it was "not required to decide whether infact [the justice] was influenced." Id., at 825. The properconstitutional inquiry is "whether sitting on the case then before theSupreme Court of Alabama ' "would offer a possible temptation to theaverage ... judge to ... lead him not to hold the balance nice, clearand true." ' " Ibid. (quoting Monroeville, supra, at 60, in turnquoting Tumey, supra, at 532). The Court underscored that "what degreeor kind of interest is sufficient to disqualify a judge from sitting'cannot be defined with precision.' " 475 U. S., at 822 (quotingMurchison, 349 U. S., at 136). In the Court's view, however, it wasimportant that the test have an objective component. The Lavoie Court proceeded to distinguish the state courtjustice's particular interest in the case, which required recusal,from interests that were not a constitutional concern. For instance,"while [the other] justices might conceivably have had a slightpecuniary interest" due to their potential membership in aclass-action suit against their own insurance companies, that interestis " 'too remote and insubstantial to violate the constitutionalconstraints.' " 475 U. S., at 825-826 (quoting Marshall v. Jerrico,Inc., 446 U. S. 238, 243 (1980)).B The second instance requiring recusal that was not discussed atcommon law emerged in the criminal contempt context, where a judge hadno pecuniary interest in the case but was challenged because of aconflict arising from his participation in an earlier proceeding. ThisCourt characterized that first proceeding (perhaps pejoratively) as a" 'one-man grand jury.' " Murchison, 349 U. S., at 133. In that first proceeding, and as provided by state law, a judgeexamined witnesses to determine whether criminal charges should bebrought. The judge called the two petitioners before him. Onepetitioner answered questions, but the judge found him untruthful andcharged him with perjury. The second declined to answer on the groundthat he did not have counsel with him, as state law seemed to permit.The judge charged him with contempt. The judge proceeded to try andconvict both petitioners. Id., at 134-135. This Court set aside the convictions on grounds that the judgehad a conflict of interest at the trial stage because of his earlierparticipation followed by his decision to charge them. The Due ProcessClause required disqualification. The Court recited the general rulethat "no man can be a judge in his own case," adding that "no man ispermitted to try cases where he has an interest in the outcome." Id.,at 136. It noted that the disqualifying criteria "cannot be definedwith precision. Circumstances and relationships must be considered."Ibid. These circumstances and the prior relationship required recusal:"Having been a part of [the one-man grand jury] process a judge cannotbe, in the very nature of things, wholly disinterested in theconviction or acquittal of those accused." Id., at 137. That isbecause "[a]s a practical matter it is difficult if not impossible fora judge to free himself from the influence of what took place in his'grand-jury' secret session." Id., at 138. The Murchison Court was careful to distinguish the circumstancesand the relationship from those where the Constitution would notrequire recusal. It noted that the single-judge grand jury is "more apart of the accusatory process than an ordinary lay grand juror," andthat "adjudication by a trial judge of a contempt committed in [ajudge's] presence in open court cannot be likened to the proceedingshere." Id., at 137. The judge's prior relationship with the defendant,as well as the information acquired from the prior proceeding, was ofcritical import. Following Murchison the Court held in Mayberry v. Pennsylvania,400 U. S. 455, 466 (1971), "that by reason of the Due Process Clauseof the Fourteenth Amendment a defendant in criminal contemptproceedings should be given a public trial before a judge other thanthe one reviled by the contemnor." The Court reiterated that this rulerests on the relationship between the judge and the defendant: "[A]judge, vilified as was this Pennsylvania judge, necessarily becomesembroiled in a running, bitter controversy. No one so cruellyslandered is likely to maintain that calm detachment necessary forfair adjudication." Id., at 465. Again, the Court considered the specific circumstances presentedby the case. It noted that "not every attack on a judge ...disqualifies him from sitting." Ibid. The Court distinguished the casefrom Ungar v. Sarafite, 376 U. S. 575 (1964), in which the Court had"ruled that a lawyer's challenge, though 'disruptive, recalcitrant anddisagreeable commentary,' was still not 'an insulting attack upon theintegrity of the judge carrying such potential for bias as to requiredisqualification.' " Mayberry, supra, at 465-466 (quoting Ungar,supra, at 584). The inquiry is an objective one. The Court asks notwhether the judge is actually, subjectively biased, but whether theaverage judge in his position is "likely" to be neutral, or whetherthere is an unconstitutional "potential for bias."III Based on the principles described in these cases we turn to theissue before us. This problem arises in the context of judicialelections, a framework not presented in the precedents we havereviewed and discussed. Caperton contends that Blankenship's pivotal role in gettingJustice Benjamin elected created a constitutionally intolerableprobability of actual bias. Though not a bribe or criminal influence,Justice Benjamin would nevertheless feel a debt of gratitude toBlankenship for his extraordinary efforts to get him elected. Thattemptation, Caperton claims, is as strong and inherent in human natureas was the conflict the Court confronted in Tumey and Monroeville whena mayor-judge (or the city) benefited financially from a defendant'sconviction, as well as the conflict identified in Murchison andMayberry when a judge was the object of a defendant's contempt. Justice Benjamin was careful to address the recusal motions andexplain his reasons why, on his view of the controlling standard,disqualification was not in order. In four separate opinions issuedduring the course of the appeal, he explained why no actual bias hadbeen established. He found no basis for recusal because Capertonfailed to provide "objective evidence" or "objective information," butmerely "subjective belief" of bias. ___ W. Va., at ___, ___-___, ___S. E. 2d, at ___, ___-___; App. 336a, 337a-338a, 444a-445a. Nor couldanyone "point to any actual conduct or activity on [his] part whichcould be termed 'improper.' " ___ W. Va., at ___-___, ___ S. E. 2d, at___-___; App. 655a-656a. In other words, based on the facts presentedby Caperton, Justice Benjamin conducted a probing search into hisactual motives and inclinations; and he found none to be improper. Wedo not question his subjective findings of impartiality and propriety.Nor do we determine whether there was actual bias. Following accepted principles of our legal tradition respectingthe proper performance of judicial functions, judges often inquireinto their subjective motives and purposes in the ordinary course ofdeciding a case. This does not mean the inquiry is a simple one. "Thework of deciding cases goes on every day in hundreds of courtsthroughout the land. Any judge, one might suppose, would find it easyto describe the process which he had followed a thousand times andmore. Nothing could be farther from the truth." B. Cardozo, The Natureof the Judicial Process 9 (1921). The judge inquires into reasons that seem to be leading to aparticular result. Precedent and stare decisis and the text andpurpose of the law and the Constitution; logic and scholarship andexperience and common sense; and fairness and disinterest andneutrality are among the factors at work. To bring coherence to theprocess, and to seek respect for the resulting judgment, judges oftenexplain the reasons for their conclusions and rulings. There areinstances when the introspection that often attends this process mayreveal that what the judge had assumed to be a proper, controllingfactor is not the real one at work. If the judge discovers that somepersonal bias or improper consideration seems to be the actuatingcause of the decision or to be an influence so difficult to dispelthat there is a real possibility of undermining neutrality, the judgemay think it necessary to consider withdrawing from the case. The difficulties of inquiring into actual bias, and the fact thatthe inquiry is often a private one, simply underscore the need forobjective rules. Otherwise there may be no adequate protection againsta judge who simply misreads or misapprehends the real motives at workin deciding the case. The judge's own inquiry into actual bias, then,is not one that the law can easily superintend or review, thoughactual bias, if disclosed, no doubt would be grounds for appropriaterelief. In lieu of exclusive reliance on that personal inquiry, or onappellate review of the judge's determination respecting actual bias,the Due Process Clause has been implemented by objective standardsthat do not require proof of actual bias. See Tumey, 273 U. S., at532; Mayberry, 400 U. S., at 465-466; Lavoie, 475 U. S., at 825. Indefining these standards the Court has asked whether, "under arealistic appraisal of psychological tendencies and human weakness,"the interest "poses such a risk of actual bias or prejudgment that thepractice must be forbidden if the guarantee of due process is to beadequately implemented." Withrow, 421 U. S., at 47. We turn to the influence at issue in this case. Not everycampaign contribution by a litigant or attorney creates a probabilityof bias that requires a judge's recusal, but this is an exceptionalcase. Cf. Mayberry, supra, at 465 ("It is, of course, not every attackon a judge that disqualifies him from sitting"); Lavoie, supra, at825-826 (some pecuniary interests are " 'too remote and insubstantial'"). We conclude that there is a serious risk of actual bias--based onobjective and reasonable perceptions--when a person with a personalstake in a particular case had a significant and disproportionateinfluence in placing the judge on the case by raising funds ordirecting the judge's election campaign when the case was pending orimminent. The inquiry centers on the contribution's relative size incomparison to the total amount of money contributed to the campaign,the total amount spent in the election, and the apparent effect suchcontribution had on the outcome of the election. Applying this principle, we conclude that Blankenship's campaignefforts had a significant and disproportionate influence in placingJustice Benjamin on the case. Blankenship contributed some $3 millionto unseat the incumbent and replace him with Benjamin. Hiscontributions eclipsed the total amount spent by all other Benjaminsupporters and exceeded by 300% the amount spent by Benjamin'scampaign committee. App. 288a. Caperton claims Blankenship spent $1million more than the total amount spent by the campaign committees ofboth candidates combined. Brief for Petitioners 28. Massey responds that Blankenship's support, while significant,did not cause Benjamin's victory. In the end the people of WestVirginia elected him, and they did so based on many reasons other thanBlankenship's efforts. Massey points out that every major statenewspaper, but one, endorsed Benjamin. Brief for Respondents 54. Italso contends that then-Justice McGraw cost himself the election bygiving a speech during the campaign, a speech the opposition seizedupon for its own advantage. Ibid. Justice Benjamin raised similar arguments. He asserted that "theoutcome of the 2004 election was due primarily to [his own] campaign'smessage," as well as McGraw's "devastat[ing]" speech in which he "madea number of controversial claims which became a matter of statewidediscussion in the media, on the internet, and elsewhere." ___ W. Va.,at ___, and n. 29, ___ S. E. 2d, at ___, and n. 29; App. 673a, 674a,and n. 29; see also ___ W. Va., at ___-___, and nn. 35-39, ___ S. E.2d, at ___-___, and nn. 35-39; App. 677a-680a, and nn. 35-39. Whether Blankenship's campaign contributions were a necessary andsufficient cause of Benjamin's victory is not the proper inquiry. Muchlike determining whether a judge is actually biased, proving whatultimately drives the electorate to choose a particular candidate is adifficult endeavor, not likely to lend itself to a certain conclusion.This is particularly true where, as here, there is no procedure forjudicial factfinding and the sole trier of fact is the one accused ofbias. Due process requires an objective inquiry into whether thecontributor's influence on the election under all the circumstances"would offer a possible temptation to the average . . . judge to ...lead him not to hold the balance nice, clear and true." Tumey, supra,at 532. In an election decided by fewer than 50,000 votes (382,036 to334,301), see ___ W. Va., at ___, ___ S. E. 2d, at ___; App. 677a,Blankenship's campaign contributions--in comparison to the totalamount contributed to the campaign, as well as the total amount spentin the election--had a significant and disproportionate influence onthe electoral outcome. And the risk that Blankenship's influenceengendered actual bias is sufficiently substantial that it "must beforbidden if the guarantee of due process is to be adequatelyimplemented." Withrow, supra, at 47. The temporal relationship between the campaign contributions, thejustice's election, and the pendency of the case is also critical. Itwas reasonably foreseeable, when the campaign contributions were made,that the pending case would be before the newly elected justice. The$50 million adverse jury verdict had been entered before the election,and the Supreme Court of Appeals was the next step once the statetrial court dealt with post-trial motions. So it became at onceapparent that, absent recusal, Justice Benjamin would review ajudgment that cost his biggest donor's company $50 million. Althoughthere is no allegation of a quid pro quo agreement, the fact remainsthat Blankenship's extraordinary contributions were made at a timewhen he had a vested stake in the outcome. Just as no man is allowedto be a judge in his own cause, similar fears of bias can arisewhen--without the consent of the other parties--a man chooses thejudge in his own cause. And applying this principle to the judicialelection process, there was here a serious, objective risk of actualbias that required Justice Benjamin's recusal. Justice Benjamin did undertake an extensive search for actualbias. But, as we have indicated, that is just one step in the judicialprocess; objective standards may also require recusal whether or notactual bias exists or can be proved. Due process "may sometimes bartrial by judges who have no actual bias and who would do their verybest to weigh the scales of justice equally between contendingparties." Murchison, 349 U. S., at 136. The failure to considerobjective standards requiring recusal is not consistent with theimperatives of due process. We find that Blankenship's significant anddisproportionate influence--coupled with the temporal relationshipbetween the election and the pending case--" ' "offer a possibletemptation to the average ... judge to ... lead him not to hold thebalance nice, clear and true." ' " Lavoie, 475 U. S., at 825 (quotingMonroeville, 409 U. S., at 60, in turn quoting Tumey, 273 U. S., at532). On these extreme facts the probability of actual bias rises toan unconstitutional level.IV Our decision today addresses an extraordinary situation where theConstitution requires recusal. Massey and its amici predict thatvarious adverse consequences will follow from recognizing aconstitutional violation here--ranging from a flood of recusal motionsto unnecessary interference with judicial elections. We disagree. Thefacts now before us are extreme by any measure. The parties point tono other instance involving judicial campaign contributions thatpresents a potential for bias comparable to the circumstances in thiscase. It is true that extreme cases often test the bounds ofestablished legal principles, and sometimes no administrable standardmay be available to address the perceived wrong. But it is also truethat extreme cases are more likely to cross constitutional limits,requiring this Court's intervention and formulation of objectivestandards. This is particularly true when due process is violated.See, e.g., County of Sacramento v. Lewis, 523 U. S. 833, 846-847(1998) (reiterating the due-process prohibition on "executive abuse ofpower . . . which shocks the conscience"); id., at 858 (KENNEDY, J.,concurring) (explaining that "objective considerations, includinghistory and precedent, are the controlling principle" of this dueprocess standard). This Court's recusal cases are illustrative. In each case theCourt dealt with extreme facts that created an unconstitutionalprobability of bias that " 'cannot be defined with precision.' "Lavoie, 475 U. S., at 822 (quoting Murchison, 349 U. S., at 136). Yetthe Court articulated an objective standard to protect the parties'basic right to a fair trial in a fair tribunal. The Court was carefulto distinguish the extreme facts of the cases before it from thoseinterests that would not rise to a constitutional level. See, e.g.,Lavoie, supra, at 825-826; Mayberry, 400 U. S., at 465-466; Murchison,supra, at 137; see also Part II, supra. In this case we do nothingmore than what the Court has done before. As such, it is worth noting the effects, or lack thereof, of theCourt's prior decisions. Even though the standards announced in thosecases raised questions similar to those that might be asked after ourdecision today, the Court was not flooded with Monroeville orMurchison motions. That is perhaps due in part to the extreme factsthose standards sought to address. Courts proved quite capable ofapplying the standards to less extreme situations. One must also take into account the judicial reforms the Stateshave implemented to eliminate even the appearance of partiality.Almost every State--West Virginia included--has adopted the AmericanBar Association's objective standard: "A judge shall avoid improprietyand the appearance of impropriety." ABA Annotated Model Code ofJudicial Conduct, Canon 2 (2004); see Brief for American BarAssociation as Amicus Curiae 14, and n. 29. The ABA Model Code's testfor appearance of impropriety is "whether the conduct would create inreasonable minds a perception that the judge's ability to carry outjudicial responsibilities with integrity, impartiality and competenceis impaired." Canon 2A, Commentary; see also W. Va. Code of JudicialConduct, Canon 2A, and Commentary (2009) (same). The West Virginia Code of Judicial Conduct also requires a judgeto "disqualify himself or herself in a proceeding in which the judge'simpartiality might reasonably be questioned." Canon 3E(1); see also 28U. S. C. §455(a) ("Any justice, judge, or magistrate judge of theUnited States shall disqualify himself in any proceeding in which hisimpartiality might reasonably be questioned"). Under Canon 3E(1), "'[t]he question of disqualification focuses on whether an objectiveassessment of the judge's conduct produces a reasonable question aboutimpartiality, not on the judge's subjective perception of the abilityto act fairly.' " State ex rel. Brown v. Dietrick, 191 W. Va. 169,174, n. 9, 444 S. E. 2d 47, 52, n. 9 (1994); see also Liteky v. UnitedStates, 510 U. S. 540, 558 (1994) (KENNEDY, J., concurring injudgment) ("[U]nder [28 U. S. C.] §455(a), a judge should bedisqualified only if it appears that he or she harbors an aversion,hostility or disposition of a kind that a fair-minded person could notset aside when judging the dispute"). Indeed, some States requirerecusal based on campaign contributions similar to those in this case.See, e.g., Ala. Code §§12-24-1, 12-24-2 (2006); Miss. Code of JudicialConduct, Canon 3E(2) (2008). These codes of conduct serve to maintain the integrity of thejudiciary and the rule of law. The Conference of the Chief Justiceshas underscored that the codes are "[t]he principal safeguard againstjudicial campaign abuses" that threaten to imperil "public confidencein the fairness and integrity of the nation's elected judges." Brieffor Conference of Chief Justices as Amicus Curiae 4, 11. This is avital state interest:"Courts, in our system, elaborate principles of law in the course ofresolving disputes. The power and the prerogative of a court toperform this function rest, in the end, upon the respect accorded toits judgments. The citizen's respect for judgments depends in turnupon the issuing court's absolute probity. Judicial integrity is, inconsequence, a state interest of the highest order." Republican Partyof Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J.,concurring).It is for this reason that States may choose to "adopt recusalstandards more rigorous than due process requires." Id., at 794; seealso Bracy v. Gramley, 520 U. S. 899, 904 (1997) (distinguishing the"constitutional floor" from the ceiling set "by common law, statute,or the professional standards of the bench and bar"). "The Due Process Clause demarks only the outer boundaries ofjudicial disqualifications. Congress and the states, of course, remainfree to impose more rigorous standards for judicial disqualificationthan those we find mandated here today." Lavoie, supra, at 828.Because the codes of judicial conduct provide more protection than dueprocess requires, most disputes over disqualification will be resolvedwithout resort to the Constitution. Application of the constitutionalstandard implicated in this case will thus be confined to rareinstances.* * * The judgment of the Supreme Court of Appeals of West Virginia isreversed, and the case is remanded for further proceedings notinconsistent with this opinion.It is so ordered.HUGH M. CAPERTON, ET AL., PETITIONERS v. A. T. MASSEY COAL COMPANY, INC., ET AL.on writ of certiorari to the supreme court of appeals of west virginia[June 8, 2009] CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS,and JUSTICE ALITO join, dissenting. I, of course, share the majority's sincere concerns about theneed to maintain a fair, independent, and impartial judiciary--and onethat appears to be such. But I fear that the Court's decision willundermine rather than promote these values. Until today, we have recognized exactly two situations in whichthe Federal Due Process Clause requires disqualification of a judge:when the judge has a financial interest in the outcome of the case,and when the judge is trying a defendant for certain criminalcontempts. Vaguer notions of bias or the appearance of bias were nevera basis for disqualification, either at common law or under ourconstitutional precedents. Those issues were instead addressed bylegislation or court rules. Today, however, the Court enlists the Due Process Clause tooverturn a judge's failure to recuse because of a "probability ofbias." Unlike the established grounds for disqualification, a"probability of bias" cannot be defined in any limited way. TheCourt's new "rule" provides no guidance to judges and litigants aboutwhen recusal will be constitutionally required. This will inevitablylead to an increase in allegations that judges are biased, howevergroundless those charges may be. The end result will do far more toerode public confidence in judicial impartiality than an isolatedfailure to recuse in a particular case.I There is a "presumption of honesty and integrity in those servingas adjudicators." Withrow v. Larkin, 421 U. S. 35, 47 (1975). Alljudges take an oath to uphold the Constitution and apply the lawimpartially, and we trust that they will live up to this promise. SeeRepublican Party of Minn. v. White, 536 U. S. 765, 796 (2002)(KENNEDY, J., concurring) ("We should not, even by inadvertence,'impute to judges a lack of firmness, wisdom, or honor' " (quotingBridges v. California, 314 U. S. 252, 273 (1941))). We have thusidentified only two situations in which the Due Process Clauserequires disqualification of a judge: when the judge has a financialinterest in the outcome of the case, and when the judge is presidingover certain types of criminal contempt proceedings. It is well established that a judge may not preside over a casein which he has a "direct, personal, substantial pecuniary interest."Tumey v. Ohio, 273 U. S. 510, 523 (1927). This principle is relativelystraightforward, and largely tracks the longstanding common-law ruleregarding judicial recusal. See Frank, Disqualification of Judges, 56Yale L. J. 605, 609 (1947) ("The common law of disqualification ...was clear and simple: a judge was disqualified for direct pecuniaryinterest and for nothing else"). For example, a defendant's dueprocess rights are violated when he is tried before a judge who is"paid for his service only when he convicts the defendant." Tumey,supra, at 531; see also Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813,824 (1986) (recusal required when the judge's decision in a relatedcase "had the clear and immediate effect of enhancing both the legalstatus and the settlement value of his own case"); Connally v.Georgia, 429 U. S. 245, 250 (1977) (per curiam). It may also violate due process when a judge presides over acriminal contempt case that resulted from the defendant's hostilitytowards the judge. In Mayberry v. Pennsylvania, 400 U. S. 455 (1971),the defendant directed a steady stream of expletives and ad hominemattacks at the judge throughout the trial. When that defendant wassubsequently charged with criminal contempt, we concluded that he"should be given a public trial before a judge other than the onereviled by the contemnor." Id., at 466; see also Taylor v. Hayes, 418U. S. 488, 501 (1974) (a judge who had "become embroiled in a runningcontroversy" with the defendant could not subsequently preside overthat defendant's criminal contempt trial). Our decisions in this area have also emphasized when the DueProcess Clause does not require recusal:"All questions of judicial qualification may not involveconstitutional validity. Thus matters of kinship, personal bias, statepolicy, remoteness of interest, would seem generally to be mattersmerely of legislative discretion." Tumey, supra, at 523; see alsoLavoie, supra, at 820.Subject to the two well-established exceptions described above,questions of judicial recusal are regulated by "common law, statute,or the professional standards of the bench and bar." Bracy v. Gramley,520 U. S. 899, 904 (1997). In any given case, there are a number of factors that could giverise to a "probability" or "appearance" of bias: friendship with aparty or lawyer, prior employment experience, membership in clubs orassociations, prior speeches and writings, religious affiliation, andcountless other considerations. We have never held that the DueProcess Clause requires recusal for any of these reasons, even thoughthey could be viewed as presenting a "probability of bias." Many statestatutes require recusal based on a probability or appearance of bias,but "that alone would not be sufficient basis for imposing aconstitutional requirement under the Due Process Clause." Lavoie,supra, at 820 (emphasis added). States are, of course, free to adoptbroader recusal rules than the Constitution requires--and every Statehas--but these developments are not continuously incorporated into theDue Process Clause.II In departing from this clear line between when recusal isconstitutionally required and when it is not, the majority repeatedlyemphasizes the need for an "objective" standard. Ante, at 1, 6, 9,11-18. The majority's analysis is "objective" in that it does notinquire into Justice Benjamin's motives or decisionmaking process. Butthe standard the majority articulates--"probability of bias"--fails toprovide clear, workable guidance for future cases. At the most basiclevel, it is unclear whether the new probability of bias standard issomehow limited to financial support in judicial elections, or appliesto judicial recusal questions more generally. But there are other fundamental questions as well. With littlehelp from the majority, courts will now have to determine:1. How much money is too much money? What level of contributionor expenditure gives rise to a "probability of bias"?2. How do we determine whether a given expenditure is"disproportionate"? Disproportionate to what?3. Are independent, non-coordinated expenditures treated the sameas direct contributions to a candidate's campaign? What aboutcontributions to independent outside groups supporting a candidate?4. Does it matter whether the litigant has contributed to othercandidates or made large expenditures in connection with otherelections?5. Does the amount at issue in the case matter? What if this casewere an employment dispute with only $10,000 at stake? What if theplaintiffs only sought non-monetary relief such as an injunction ordeclaratory judgment?6. Does the analysis change depending on whether the judge whosedisqualification is sought sits on a trial court, appeals court, orstate supreme court?7. How long does the probability of bias last? Does theprobability of bias diminish over time as the election recedes? Doesit matter whether the judge plans to run for reelection?8. What if the "disproportionately" large expenditure is made byan industry association, trade union, physicians' group, or theplaintiffs' bar? Must the judge recuse in all cases that affect theassociation's interests? Must the judge recuse in all cases in which aparty or lawyer is a member of that group? Does it matter how much thelitigant contributed to the association?9. What if the case involves a social or ideological issue ratherthan a financial one? Must a judge recuse from cases involving, say,abortion rights if he has received "disproportionate" support fromindividuals who feel strongly about either side of that issue? If thesupporter wants to help elect judges who are "tough on crime," mustthe judge recuse in all criminal cases?10. What if the candidate draws "disproportionate" support from aparticular racial, religious, ethnic, or other group, and the caseinvolves an issue of particular importance to that group?11. What if the supporter is not a party to the pending orimminent case, but his interests will be affected by the decision?Does the Court's analysis apply if the supporter "chooses the judge"not in his case, but in someone else's?12. What if the case implicates a regulatory issue that is ofgreat importance to the party making the expenditures, even though hehas no direct financial interest in the outcome (e.g., a facialchallenge to an agency rulemaking or a suit seeking to limit anagency's jurisdiction)?13. Must the judge's vote be outcome determinative in order forhis non-recusal to constitute a due process violation?14. Does the due process analysis consider the underlying meritsof the suit? Does it matter whether the decision is clearly right (orwrong) as a matter of state law?15. What if a lower court decision in favor of the supporter isaffirmed on the merits on appeal, by a panel with no "debt ofgratitude" to the supporter? Does that "moot" the due process claim?16. What if the judge voted against the supporter in many other cases?17. What if the judge disagrees with the supporter's message ortactics? What if the judge expressly disclaims the support of thisperson?18. Should we assume that elected judges feel a "debt ofhostility" towards major opponents of their candidacies? Must thejudge recuse in cases involving individuals or groups who spent largeamounts of money trying unsuccessfully to defeat him?19. If there is independent review of a judge's recusal decision,e.g., by a panel of other judges, does this completely foreclose a dueprocess claim?20. Does a debt of gratitude for endorsements by newspapers,interest groups, politicians, or celebrities also give rise to aconstitutionally unacceptable probability of bias? How would wemeasure whether such support is disproportionate?21. Does close personal friendship between a judge and a party orlawyer now give rise to a probability of bias?22. Does it matter whether the campaign expenditures come from aparty or the party's attorney? If from a lawyer, must the judge recusein every case involving that attorney?23. Does what is unconstitutional vary from State to State? Whatif particular States have a history of expensive judicial elections?24. Under the majority's "objective" test, do we analyze the dueprocess issue through the lens of a reasonable person, a reasonablelawyer, or a reasonable judge?25. What role does causation play in this analysis? The Courtsends conflicting signals on this point. The majority asserts that"[w]hether Blankenship's campaign contributions were a necessary andsufficient cause of Benjamin's victory is not the proper inquiry."Ante, at 15. But elsewhere in the opinion, the majority considers "theapparent effect such contribution had on the outcome of the election,"ante, at 14, and whether the litigant has been able to "choos[e] thejudge in his own cause," ante, at 16. If causation is a pertinentfactor, how do we know whether the contribution or expenditure had anyeffect on the outcome of the election? What if the judge won in alandslide? What if the judge won primarily because of his opponent'smissteps?26. Is the due process analysis less probing for incumbentjudges--who typically have a great advantage in elections--than forchallengers?27. How final must the pending case be with respect to thecontributor's interest? What if, for example, the only issue on appealis whether the court should certify a class of plaintiffs? Is recusalrequired just as if the issue in the pending case were ultimateliability?28. Which cases are implicated by this doctrine? Must the case bepending at the time of the election? Reasonably likely to be brought?What about an important but unanticipated case filed shortly after theelection?29. When do we impute a probability of bias from one party toanother? Does a contribution from a corporation get imputed to itsexecutives, and vice-versa? Does a contribution or expenditure by onefamily member get imputed to other family members?30. What if the election is nonpartisan? What if the election isjust a yes-or-no vote about whether to retain an incumbent?31. What type of support is disqualifying? What if the supporter'sexpenditures are used to fund voter registration or get-out-the-voteefforts rather than television advertisements?32. Are contributions or expenditures in connection with a primaryaggregated with those in the general election? What if the contributorsupported a different candidate in the primary? Does that dilute thedebt of gratitude?33. What procedures must be followed to challenge a state judge'sfailure to recuse? May Caperton claims only be raised on directreview? Or may such claims also be brought in federal district courtunder 42 U. S. C. §1983, which allows a person deprived of a federalright by a state official to sue for damages? If §1983 claims areavailable, who are the proper defendants? The judge? The whole court?The clerk of court?34. What about state-court cases that are already closed? Can thelosing parties in those cases now seek collateral relief in federaldistrict court under §1983? What statutes of limitation should beapplied to such suits?35. What is the proper remedy? After a successful Caperton motion,must the parties start from scratch before the lower courts? Is anypart of the lower court judgment retained?36. Does a litigant waive his due process claim if he waits untilafter decision to raise it? Or would the claim only be ripe afterdecision, when the judge's actions or vote suggest a probability ofbias?37. Are the parties entitled to discovery with respect to thejudge's recusal decision?38. If a judge erroneously fails to recuse, do we applyharmless-error review?39. Does the judge get to respond to the allegation that he isprobably biased, or is his reputation solely in the hands of theparties to the case?40. What if the parties settle a Caperton claim as part of abroader settlement of the case? Does that leave the judge with no wayto salvage his reputation? These are only a few uncertainties that quickly come to mind.Judges and litigants will surely encounter others when they are forcedto, or wish to, apply the majority's decision in differentcircumstances. Today's opinion requires state and federal judgessimultaneously to act as political scientists (why did candidate X winthe election?), economists (was the financial supportdisproportionate?), and psychologists (is there likely to be a debt ofgratitude?). The Court's inability to formulate a "judicially discernible andmanageable standard" strongly counsels against the recognition of anovel constitutional right. See Vieth v. Jubelirer, 541 U. S. 267, 306(2004) (plurality opinion) (holding political gerrymandering claimsnonjusticiable based on the lack of workable standards); id., at 317(KENNEDY, J., concurring in judgment) ("The failings of the manyproposed standards for measuring the burden a gerrymander imposes ...make our intervention improper"). The need to consider these andcountless other questions helps explain why the common law and thisCourt's constitutional jurisprudence have never requireddisqualification on such vague grounds as "probability" or"appearance" of bias.IIIA To its credit, the Court seems to recognize that the inherentlyboundless nature of its new rule poses a problem. But the majority'sonly answer is that the present case is an "extreme" one, so there isno need to worry about other cases. Ante, at 17. The Court repeatsthis point over and over. See ante, at 13 ("this is an exceptionalcase"); ante, at 16 ("On these extreme facts"); ibid. ("Our decisiontoday addresses an extraordinary situation"); ante, at 17 ("The factsnow before us are extreme by any measure"); ante, at 20 (Court's rulewill "be confined to rare instances"). But this is just so much whistling past the graveyard. Claimsthat have little chance of success are nonetheless frequently filed.The success rate for certiorari petitions before this Court isapproximately 1.1%, and yet the previous Term some 8,241 were filed.Every one of the "Caperton motions" or appeals or §1983 actions willclaim that the judge is biased, or probably biased, bringing the judgeand the judicial system into disrepute. And all future litigants willassert that their case is really the most extreme thus far. Extreme cases often test the bounds of established legalprinciples. There is a cost to yielding to the desire to correct theextreme case, rather than adhering to the legal principle. That costhas been demonstrated so often that it is captured in a legalaphorism: "Hard cases make bad law." Consider the cautionary tale of our decisions in United States v.Halper, 490 U. S. 435 (1989), and Hudson v. United States, 522 U. S.93 (1997). Historically, we have held that the Double Jeopardy Clauseonly applies to criminal penalties, not civil ones. See, e.g.,Helvering v. Mitchell, 303 U. S. 391, 398-400 (1938). But in Halper,the Court held that a civil penalty could violate the Clause if itwere "overwhelmingly disproportionate to the damages [the defendant]has caused" and resulted in a "clear injustice." 490 U. S., at 446,449. We acknowledged that this inquiry would not be an "exactpursuit," but the Court assured litigants that it was only announcing"a rule for the rare case, the case such as the one before us." Id.,at 449; see also id., at 453 (KENNEDY, J., concurring) ("Today'sholding, I would stress, constitutes an objective rule that isgrounded in the nature of the sanction and the facts of the particularcase"). Just eight years later, we granted certiorari in Hudson "becauseof concerns about the wide variety of novel double jeopardy claimsspawned in the wake of Halper." 522 U. S., at 98; see also ibid., n.4. The novel claim that we had recognized in Halper turned out not tobe so "rare" after all, and the test we adopted in thatcase--"overwhelmingly disproportionate"--had "proved unworkable." Id.,at 101-102 (internal quotation marks omitted). We thus abandoned theHalper rule, ruing our "ill considered" "deviation from longstandingdouble jeopardy principles." Id., at 101. The déjÀ vu is enough to make one swoon. Today, the majorityagain departs from a clear, longstanding constitutional rule toaccommodate an "extreme" case involving "grossly disproportionate"amounts of money. I believe we will come to regret this decision aswell, when courts are forced to deal with a wide variety of Capertonmotions, each claiming the title of "most extreme" or "mostdisproportionate."B And why is the Court so convinced that this is an extreme case?It is true that Don Blankenship spent a large amount of money inconnection with this election. But this point cannot be emphasizedstrongly enough: Other than a $1,000 direct contribution fromBlankenship, Justice Benjamin and his campaign had no control over howthis money was spent. Campaigns go to great lengths to develop precisemessages and strategies. An insensitive or ham-handed ad campaign byan independent third party might distort the campaign's message orcause a backlash against the candidate, even though the candidate wasnot responsible for the ads. See Buckley v. Valeo, 424 U. S. 1, 47(1976) (per curiam) ("Unlike contributions, such independentexpenditures may well provide little assistance to the candidate'scampaign and indeed may prove counterproductive"); see also Brief forConference of Chief Justices as Amicus Curiae 27, n. 50 (citingexamples of judicial elections in which independent expendituresbackfired and hurt the candidate's campaign). The majority repeatedlycharacterizes Blankenship's spending as "contributions" or "campaigncontributions," ante, at 1, 3, 14-17, 19, but it is more accurate torefer to them as "independent expenditures." Blankenship only"contributed" $1,000 to the Benjamin campaign. Moreover, Blankenship's independent expenditures do not appear"grossly disproportionate" compared to other such expenditures in thisvery election. "And for the Sake of the Kids"--an independent groupthat received approximately two-thirds of its funding fromBlankenship--spent $3,623,500 in connection with the election. App.684a. But large independent expenditures were also made in support ofJustice Benjamin's opponent. "Consumers for Justice"--an independentgroup that received large contributions from the plaintiffs'bar--spent approximately $2 million in this race. Id., at 682a-683a,n. 41. And Blankenship has made large expenditures in connection withseveral previous West Virginia elections, which undercuts any notionthat his involvement in this election was "intended to influence theoutcome" of particular pending litigation. Brief for Petitioners 29. It is also far from clear that Blankenship's expendituresaffected the outcome of this election. Justice Benjamin won by acomfortable 7-point margin (53.3% to 46.7%). Many observers believedthat Justice Benjamin's opponent doomed his candidacy by giving awell-publicized speech that made several curious allegations; thisspeech was described in the local media as "deeply disturbing" andworse. App. 679a, n. 38. Justice Benjamin's opponent also refused togive interviews or participate in debates. All but one of the majorWest Virginia newspapers endorsed Justice Benjamin. Justice Benjaminjust might have won because the voters of West Virginia thought hewould be a better judge than his opponent. Unlike the majority, Icannot say with any degree of certainty that Blankenship "cho[se] thejudge in his own cause." Ante, at 16. I would give the voters of WestVirginia more credit than that.* * * It is an old cliché, but sometimes the cure is worse than thedisease. I am sure there are cases where a "probability of bias"should lead the prudent judge to step aside, but the judge fails to doso. Maybe this is one of them. But I believe that opening the door torecusal claims under the Due Process Clause, for an amorphous"probability of bias," will itself bring our judicial system intoundeserved disrepute, and diminish the confidence of the Americanpeople in the fairness and integrity of their courts. I hope I amwrong. I respectfully dissent.HUGH M. CAPERTON, ET AL., PETITIONERS v. A. T. MASSEY COAL COMPANY, INC., ET AL.on writ of certiorari to the supreme court of appeals of west virginia[June 8, 2009] JUSTICE SCALIA, dissenting. The principal purpose of this Court's exercise of its certiorarijurisdiction is to clarify the law. See this Court's Rule 10. As THECHIEF JUSTICE's dissent makes painfully clear, the principalconsequence of today's decision is to create vast uncertainty withrespect to a point of law that can be raised in all litigated cases in(at least) those 39 States that elect their judges. This course wasurged upon us on grounds that it would preserve the public'sconfidence in the judicial system. Brief for Petitioners 16. The decision will have the opposite effect. What above all elseis eroding public confidence in the Nation's judicial system is theperception that litigation is just a game, that the party with themost resourceful lawyer can play it to win, that our seeminglyinterminable legal proceedings are wonderfully self-perpetuating butincapable of delivering real-world justice. The Court's opinion willreinforce that perception, adding to the vast arsenal of lawyerlygambits what will come to be known as the Caperton claim. The factsrelevant to adjudicating it will have to be litigated--and likewisethe law governing it, which will be indeterminate for years to come,if not forever. Many billable hours will be spent in poring throughvolumes of campaign finance reports, and many more in contestingnonrecusal decisions through every available means. A Talmudic maxim instructs with respect to the Scripture: "Turnit over, and turn it over, for all is therein." The Babylonian Talmud,Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinelyinspired text may contain the answers to all earthly questions, butthe Due Process Clause most assuredly does not. The Court todaycontinues its quixotic quest to right all wrongs and repair allimperfections through the Constitution. Alas, the quest cannotsucceed--which is why some wrongs and imperfections have been callednonjusticiable. In the best of all possible worlds, should judgessometimes recuse even where the clear commands of our prior dueprocess law do not require it? Undoubtedly. The relevant question,however, is whether we do more good than harm by seeking to correctthis imperfection through expansion of our constitutional mandate in amanner ungoverned by any discernable rule. The answer is obvious.- See more at: http://caselaw.findlaw.com/us-supreme-court/556/868.html#sthash.58ZxAIX4.dpuf
