Electing Judges, Judging Elections, and the Lessons of Caperton

By Karlan, Pamela S. | Harvard Law Review, November 2009 | Go to article overview

Electing Judges, Judging Elections, and the Lessons of Caperton


Karlan, Pamela S., Harvard Law Review


Few Supreme Court cases inspire a bestselling novel before they're decided. But Caperton v. A.T. Massey Coal Co. (1) did: the story of how a big damages verdict prompted the head of a large corporation to pour millions of dollars into a judicial election for the court that would hear the company's appeal inspired John Grisham just as it appalled the Court. (2)

Caperton calls to mind far more than the plot of a page-turner. This Comment shows how Caperton also taps into several long-running themes in the law of democracy--the set of doctrines and jurisprudential positions that create the structure within which politics, elections, and governance occur. In Part I, I discuss how Caperton fits into a stream of cases involving judicial elections. Judicial elections confront the Supreme Court with an uncomfortable fact. The Court has often drawn a sharp distinction between judges and other public officials. But while the Court holds itself apart from the "political thicket," (3) the vast majority of American judges cannot escape that thicket altogether: they get or retain their positions through popular election. (4) The Court's discomfort with judicial elections has prompted two responses. Sometimes, Justices have argued for relaxing or modifying election rules to account for the distinctive post-election role played by judges. Other times, the Justices have seemed almost to revel in confronting the public with the consequences of its choice to select judges by election, rather than appointment. While the Court's opinion in Caper-ton focused explicitly only on the way that extraordinary infusions of money into a judicial election may threaten judicial impartiality, the Court's analysis cannot be so easily cabined. Money, after all, gains its power in elections because it is the fuel of politics and can be converted into votes. (5) If gratitude for a past financial contribution can pose a sufficiently serious "risk of actual bias or prejudgment" to threaten "the guarantee of due process," (6) then what should we make of the more direct effect that comes from fear of future electoral retaliation? Political calculations could influence judges' decisions in a wide range of cases and might influence them in less visible, and thus more pernicious and less potentially self-correcting, ways than campaign spending does.

In Part II, I turn from what Caperton says about electing judges to how Caperton reflects broader themes about judicial regulation of politics. Across a variety of domains, a central problem in the law of democracy concerns articulating when and how courts should intervene. Caperton echoes several key elements of the Court's prior decisions, such as the relationship between the justiciability of constitutional claims and the availability of clear-cut rules for adjudicating them; the salience of appearance and "expressive harms" in the regulation of politics; and the effect of judicially announced rules on the broader political culture. Most fundamentally, Caperton continues the Court's problematic insistence on addressing structural problems through the lens of protecting individual rights.

I. ELECTING JUDGES: CAPERTON AND THE RISKS OF JUDICIAL BIAS

In 2002, a West Virginia jury returned a $50 million verdict against the A.T. Massey Coal Company (Massey) in a commercial dispute. (7) The central claim advanced by the petitioners in Caperton was that Justice Brent Benjamin's decision to participate in Massey's appeal from that verdict violated the Due Process Clause of the Fourteenth Amendment in light of the extraordinary support he had received during his 2004 campaign for a seat on the West Virginia Supreme Court of Appeals from Don Blankenship, a high-level Massey official. (8) Given that Caperton was framed as a case about the constitutional rights of litigants, it makes sense that both Justice Kennedy's opinion for the Court and Chief Justice Roberts's principal dissent began their analyses by looking to the Court's prior decisions involving recusal. …

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