Why the Supreme Court Got It Wrong in the Massey case

Recently, the U.S. Supreme Court decided Caperton v. Massey (http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf).  In this landmark ruling, the Court held that a judge must recuse himself/herself if there was an appearance of impropriety.  In this case, the CEO of Massey Energy (which had a case in the legal pipeline that was likely to be heard by the West Virginia Supreme Court) contributed over $2.5 million of his own money to a 527 group called And For the Sake of the Kids.  This group targeted the incumbent state supreme court justice Warren McGraw (and thus favored his opponent Brent Benjamin).  McGraw lost the election.  When the Massey case was heard by the West Virginia Court, Benjamin refused to recuse himself and voted with the 3-2 majority to overturn a multimillion dollar verdict.  The case is slightly more nuanced than that, but the above facts capture the essence of the case.

By a 5-4 vote, the U.S. Supreme Court held that it was a violation of due process for Benjamin to not disqualify himself.  Justice Kennedy wrote:  “We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  It is important to note that the Court did not find (or allege) that Benjamin’s vote was “bought.”  Rather, the mere appearance of bias was good enough.

Now, on the face of it, it is hard to argue with the Court’s conclusion.  After all, we can’t have biased judges hearing cases.  But, the Court’s conclusions were driven by a selective reading of the available evidence.  For example, 50% of West Virginia incumbents have lost their bids for reelection over the past 2 decades.  Incumbent defeats are not new events in WV.  Second, every newspaper in the state except one endorsed Benjamin over McGraw.  Third, the election was held in 2004.  West Virginia elects its judges on a partisan ballot, and West Virginia supported the reelection of George W. Bush.  It is not surprising that a down-ballot Democrat might lose under these conditions.  But the most damning piece of evidence arguing against the Court’s conclusion was a press release from the WV Supreme Court (http://www.state.wv.us/wvsca/press/march2_09.htm).  Of the 5 cases involving Massey Energy decided by the WV Supreme Court, Benjamin voted against Massey in 4 of them! Indeed, he supported $90.5 million in damages against Massey.  The only time he supported Massey was in the Caperton case, where he voted to overturn a $50 million verdict.  So, the CEO of Massey energy spent over $2.5 million of his own money to help elect Brent Benjamin…and Benjamin repaid him by costing his company $40 million.  Hardly the stuff of justice for sale.

The Chief Justice’s dissent goes into the plethora of unanswered questions raised by the case—I’ll not summarize them here.  I will close, though, with what I think is a likely outcome of the decision.  A conservative interest group in say, Texas, will now decide to support a liberal judge for the Court.  If the liberal wins, they can argue he/she should recuse himself/herself under Massey.  If the liberal loses, all the better since the candidate who is closer to the group will end up winning (and not have to worry about recusal since there is no appearance of impropriety).  Kennedy’s opinion stressed the “extraordinary” nature of the Massey case.  And maybe this case is like Bush v. Gore—good for one time only.  But I fear the Court has opened up a huge can of worms, and provided no guidance as to how lower courts should interpret and implement the decision.