Back in 1996,William Rehnquist,then chief justice of the Supreme Court,called an independent judiciary one of the crown jewels of our system of government. He considered America’s courts a model for other countries. Would-be foreign imitators might,however,consider Caperton v Massey,a case that the Supreme Court will hear on March 3rd. In 2004 Don Blankenship,the chief executive of Massey Energy,spent $3m to help elect Brent Benjamin to West Virginia’s Supreme Court. In 2007 Mr Benjamin voted to overturn a $50m judgment against Massey.
With Caperton v Massey,the Supreme Court will consider the effect of campaign spending on the judiciary. Thirty-nine states hold judicial elections. The fights are bitter,part of an escalating war between business groups and trial lawyers. From 2000 to 2007 fund-raising for state Supreme Court races reached $168m,almost twice the amount raised in the 1990s.
The main question is whether Mr Benjamin’s failure to recuse himself denied a fair trial for Hugh Caperton,whose coal company Massey had allegedly bankrupted through fraud. Rules for recusal do exist. The Supreme Court has warned against a “probability of unfairness”,but its most definitive ruling only bars judges from cases in which they have a financial stake. Forty-seven states have adopted the American Bar Association’s tougher rule for recusal when “impartiality might reasonably be questioned”. But most judges are responsible for recusing themselves. Mr Benjamin thought it unnecessary.
Mr Caperton’s lawyers argue that the nature of Mr Blankenship’s spending,including its scale (60 per cent of all the money raised for Mr Benjamin) and timing (Massey was preparing an appeal),created a constitutionally unacceptable probability of bias. Mr Benjamin may,of course,have been truly impartial. But one poll found that 67 per cent of West Virginians doubted it. Mr Caperton’s cause has a wide range of supporters,from the Brennan Centre in New York to more unusual suspects,such as the Committee for Economic Development.
Reformers should temper their excitement. First,Mr Caperton may not win. Mr Blankenship was not,personally,a litigant and has done nothing illegal. He gave only $1,000 directly to Mr Benjamin’s campaign; the rest came indirectly. The Centre for Competitive Politics,based in Alexandria,Virginia,filed a brief in the case that warns against restricting the right to free speech-in the past the Supreme Court has defended political spending under the first amendment. Mr Benjamin himself had no direct financial stake in the outcome of the case. He had ruled against Massey at least five other times,though in those cases his was not the deciding vote.
Second,even if the Supreme Court backs Mr Caperton,questions will linger. How much spending is too much? What about spending by chambers of commerce? States may consider reforms for recusal-some already are. But the Supreme Court in 1991 acknowledged a fundamental tension between the ideal character of the judicial office and the real world of electoral politics. As long as states elect their judges,that tension will remain.
© The Economist Newspaper Limited 2009