The (Non)problem of a Limited Due Process Right to Judicial Disqualification
Meiser, John A., Notre Dame Law Review
With respect to the people that are supporting me [in my election bid], my position has been the same, which is: if the law's in your favor, then I may find for you. If it's against you, then understand that I may find against you, that's the way it is.... That's what I stand for.
--West Virginia Supreme Court Justice Brent D. Benjamin (1)
When West Virginia Supreme Court Justice Brent D. Benjamin cast the deciding vote--twice--to overturn a $50 million award against Massey Energy Co. (Massey), (2) one hopes that the law was on Massey's side. But, despite Justice Benjamin's assurances that it was, (3) several commentators are not so convinced. (4) Their contentions are not with Justice Benjamin's legal reasoning (though that might also be suspect (5)), but rather with his participation in the case to begin with. Indeed, Caperton presented Justice Benjamin and the West Virginia Supreme Court with an unusual scenario: the CEO of appellant Massey, Don Blankenship, was a vocal and generous supporter of Justice Benjamin's recent West Virginia Supreme Court election campaign. (6) He was, one might say, Justice Benjamin's best supporter.
Blankenship donated over $3 million to Benjamin's 2004 election bid--more than all other donors combined--while Massey's case was preparing for appeal. (7)
Understandably, Massy's opponents in Caperton sought to remove Justice Benjamin from the case, but Benjamin refused, and he ultimately voted with a three-to-two majority to overturn the verdict against Blankenship and Massey. (8) However, Massey's opponents would have another chance at the casenas it turns out, Blankenship is remarkably well connected in West Virginia, and that first decision was fraught with potential biases. Shortly after the decision, photographs surfaced of then-Chief Justice Elliott "Spike" Maynard (who also sided with the three-Justice majority) vacationing with Blankenship in Monte Carlo while the appeal was pending. (9) Blankenship's opponents requested, and were granted, a rehearing and Maynard removed himself from the case. (10) On the motion of Massey, a third justice, Larry Starcher, also sat out the second case. (11) In his outrage over the first decision (in which he was half of the two-Justice minority), Justice Starcher had proven to not be Blankenship's biggest supporter. Justice Starcher had in fact vocally berated Blankenship, calling him, among other things, "stupid, evil and a clown." (12) But Justice Benjamin did not follow the lead of his colleagues and remained on the case--as acting Chief Justice--and he once again cast the deciding vote for a three-to-two majority in Massey's favor. (13)
The Massey saga is, in many senses, alarming, and the public has taken notice. News outlets across the country have followed the story, and editorials from the Charleston Gazette (14) to the New York Times (15) have criticized the West Virginia justices' behavior. Chief Justice Maynard has been called "unworthy of the bench," (16) Justice Benjamin has been attacked for a lack of ethics, (17) and the West Virginia Supreme Court as a whole has been described as a "supreme mess." (18) Maynard has already lost his reelection bid, (19) and West Virginia lawmakers are reconsidering how the State selects its justices in the first place. (20) Famed novelist John Grisham has even used the episode to promote his newest legal thriller. (21) And now, the Supreme Court of the United States has heard the case, and will consider whether Justice Benjamin's participation was unconstitutional. (22)
But, perhaps most troubling, the Massey scandal is not as rare as it might seem. Throughout the twentieth century, the United States has intermittently been scandalized by similar judicial ethics controversies. In the 1940s, Justice Hugo Black's participation in a case (23) tried by his former law partner (from twenty years earlier) drew harsh criticism from his colleague Justice Robert Jackson, and "brought the subject of judicial disqualification sharply into the focus of public and professional attention. …