2252 129 supreme court reporter 129 supreme court reporter hugh m. caperton, ... constitutional law...

2252 129 SUPREME COURT REPORTER

Hugh M. CAPERTON,et al., Petitioners,

v.

A.T. MASSEY COAL CO., INC., et al.

No. 08–22.

Argued March 3, 2009.

Decided June 8, 2009.

Background: The Circuit Court, BooneCounty, entered $50 million dollarjudgment against coal company and itsaffiliates for their fraudulent misrepre-sentation, concealment and tortious in-terference, and denied post-judgmentmotions for judgment as a matter oflaw, new trial, or remittitur. Coal com-pany and its affiliates appealed. TheWest Virginia Supreme Court of Ap-peals, Davis, J., –––– W.Va. ––––, ––––S.E.2d ––––, 2008 WL 918444, enteredorder reversing judgment, after one ofthe three judge’s on majority had de-nied recusal motion. Certiorari wasgranted.

Holding: The United States SupremeCourt, Justice Kennedy, held that StateSupreme Court of Appeals judge thatpresident and chief executive officer(CEO) of corporation appearing before himhelped to elect, by contributing some $3million to his election campaign followingtrial court’s entry of $50 million judgmentagainst corporation, at time when it waslikely that corporation would be seekingreview in West Virginia’s Supreme Courtof Appeals, should have recused himself asmatter of due process.

Reversed and remanded.

Chief Justice Roberts dissented and filedopinion, in which Justices Scalia, Thomas,and Alito joined.

Justice Scalia dissented and filed opinion.

1. Constitutional Law O3880Fair trial in fair tribunal is basic re-

quirement of due process. U.S.C.A.Const.Amend. 14.

2. Constitutional Law O3880While fair trial in fair tribunal is basic

requirement of due process, most mattersrelating to judicial disqualification do notrise to Constitutional level. U.S.C.A.Const.Amend. 14.

3. Judges O49(1)Even when judge does not have any

direct, personal, substantial, pecuniary in-terest in case, of kind requiring his or herdisqualification at common law, there arecircumstances in which probability of actu-al bias on part of judge is too high to beconstitutionally tolerable.

4. Judges O49(1)In deciding whether probability of ac-

tual bias on part of judge is too high to beconstitutionally tolerable, court’s inquiry isobjective one, that asks not whether judgeis actually, subjectively biased, but wheth-er average judge in judge’s position islikely to be neutral, or whether there isunconstitutional potential for bias.

5. Judges O49(1)Judge’s own inquiry into actual bias is

not one that the law can easily superintendor review, though actual bias, if disclosed,no doubt would be grounds for appropriaterelief.

6. Constitutional Law O3880In lieu of exclusive reliance on person-

al inquiry by judge, or on appellate reviewof judge’s determination respecting actualbias, the Due Process Clause is implement-ed, in area of judicial recusal, by objectivestandards which do not require proof ofactual bias; in defining these standards,court asks whether, under a realistic ap-praisal of psychological tendencies and hu-

2253CAPERTON v. A.T. MASSEY COAL CO., INC.Cite as 129 S.Ct. 2252 (2009)

man weakness, the interest in questionposes such a risk of actual bias or prejudg-ment that practice must be forbidden ifguarantee of due process is to be ade-quately implemented. U.S.C.A. Const.Amend. 14.

7. Judges O45, 46Not every campaign contribution by

litigant or attorney creates probability ofbias that requires judge’s recusal.

8. Judges O45There is serious risk of actual bias,

based on objective and reasonable percep-tions, when person with personal stake inparticular case had significant and dispro-portionate influence in placing judge oncase by raising funds or by directingjudge’s election campaign when case waspending or imminent.

9. Constitutional Law O4016 Judges O45

In deciding whether recusal was re-quired as matter of due process basedupon campaign contributions which StateSupreme Court of Appeals judge had re-ceived from litigant, court’s inquiry wouldcenter on contribution’s relative size incomparison to total amount of money con-tributed to campaign, total amount spentin election, and apparent effect that contri-bution had on outcome of the election.U.S.C.A. Const.Amend. 14.

10. Constitutional Law O4016 Judges O45

State Supreme Court of Appealsjudge that president and chief executiveofficer (CEO) of corporation appearing be-fore him helped to elect, by contributingsome $3 million to his election campaignfollowing trial court’s entry of $50 millionjudgment against corporation, at timewhen it was likely that corporation wouldbe seeking review in West Virginia’s Su-preme Court of Appeals, should have re-

cused himself as matter of due process,where this $3 million contribution eclipsedtotal amount spent by all of judge’s othersupporters and exceeded, by 300%, amountspent by judge’s campaign committee; sig-nificant and disproportionate influence ofcorporate CEO in electing judge, coupledwith temporal relationship between elec-tion and pending case, offered possibletemptation to average judge to lead himnot to hold the balance nice, clear andtrue. U.S.C.A. Const.Amend. 14.

11. Constitutional Law O3880

Whether litigant’s campaign contribu-tions were a necessary and sufficient causeof judge’s victory in judicial election is notproper inquiry in deciding whether suchcontributions require judge’s recusal fromcase involving litigant as matter of dueprocess; due process requires an objectiveinquiry into whether contributor’s influ-ence on election under all the circum-stances would offer possible temptation toaverage judge to lead him not to hold thebalance nice, clear and true. U.S.C.A.Const.Amend. 14.

12. Judges O51(4)

Inquiry into actual bias is just onestep that judge must take in decidingwhether to recuse himself; objective stan-dards may also require recusal whether ornot actual bias exists or can be proven.


Due process may sometimes bar trialby judges who have no actual bias and whowould do their very best to weigh scales ofjustice equally between contending parties.U.S.C.A. Const.Amend. 14.


Judges O39

Due Process Clause demarks only theouter boundaries of judicial disqualifica-tions, and Congress and the states remain


free to impose more rigorous standards forjudicial disqualification than those mandat-ed as a matter of due process. U.S.C.A.Const.Amend. 14.

Syllabus *

After a West Virginia jury found re-spondents, a coal company and its affiliates(hereinafter Massey), liable for fraudulentmisrepresentation, concealment, and tor-tious interference with existing contractualrelations and awarded petitioners (herein-after Caperton) $50 million in damages,West Virginia held its 2004 judicial elec-tions. Knowing the State Supreme Courtof Appeals would consider the appeal, DonBlankenship, Massey’s chairman and prin-cipal officer, supported Brent Benjaminrather than the incumbent justice seekingreelection. His $3 million in contributionsexceeded the total amount spent by allother Benjamin supporters and by Benja-min’s own committee. Benjamin won byfewer than 50,000 votes. Before Masseyfiled its appeal, Caperton moved to dis-qualify now-Justice Benjamin under theDue Process Clause and the State’s Codeof Judicial Conduct, based on the conflictcaused by Blankenship’s campaign involve-ment. Justice Benjamin denied the mo-tion, indicating that he found nothingshowing bias for or against any litigant.The court then reversed the $50 millionverdict. During the rehearing process,Justice Benjamin refused twice more torecuse himself, and the court once againreversed the jury verdict. Four monthslater, Justice Benjamin filed a concurringopinion, defending the court’s opinion andhis recusal decision.

Held: In all the circumstances of thiscase, due process requires recusal. Pp.2259 – 2267.

(a) The Due Process Clause incorpo-rated the common-law rule requiring recu-sal when a judge has ‘‘a direct, personal,substantial, pecuniary interest’’ in a case,Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct.437, 71 L.Ed. 749, but this Court has alsoidentified additional instances which, as anobjective matter, require recusal where‘‘the probability of actual bias on the partof the judge or decisionmaker is too highto be constitutionally tolerable,’’ Withrowv. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456,43 L.Ed.2d 712. Two such instances placethe present case in proper context. Pp.2259 – 2262.

(1) The first involved local tribunals inwhich a judge had a financial interest in acase’s outcome that was less than whatwould have been considered personal ordirect at common law. In Tumey, a vil-lage mayor with authority to try thoseaccused of violating a law prohibiting thepossession of alcoholic beverages faced twopotential conflicts: Because he received asalary supplement for performing judicialduties that was funded from the fines as-sessed, he received a supplement onlyupon a conviction; and sums from thefines were deposited to the village’s gener-al treasury fund for village improvementsand repairs. Disqualification was requiredunder the principle that ‘‘[e]very proce-dure which would offer a possible tempta-tion to the average man as a judge toforget the burden of proof required toconvict the defendant, or which might leadhim not to hold the balance nice, clear andtrue between the State and the accused,denies the latter due process of law.’’ 273U. S., at 532, 47 S.Ct. 437. In Ward v.Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34L.Ed.2d 267, a conviction in another may-or’s court was invalidated even though the

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


fines assessed went only to the town’sgeneral fisc, because the mayor faced a‘‘ ‘ possible temptation’ ’’ created by his‘‘executive responsibilities for village fi-nances.’’ Id., at 60, 93 S.Ct. 80. Recusalwas also required where an Alabama Su-preme Court justice cast the deciding voteupholding a punitive damages award whilehe was the lead plaintiff in a nearly identi-cal suit pending in Alabama’s lower courts.Aetna Life Ins. Co. v. Lavoie, 475 U.S.813, 106 S.Ct. 1580, 89 L.Ed.2d 823. Theproper constitutional inquiry was not‘‘whether in fact [the justice] was influ-enced,’’ id., at 825, 106 S.Ct. 1580, but‘‘whether sitting on [that] case TTT ‘ ‘‘wouldoffer a possible temptation to the averageTTT judge to TTT lead him not to hold thebalance nice, clear and true,’’ ’ ’’ ibid.While the ‘‘degree or kind of interest TTT

sufficient to disqualify a judge TTT ‘[couldnot] be defined with precision,’ ’’ id., at822, 106 S.Ct. 1580, the test did have anobjective component. Pp. 2259 – 2261.

(2) The second instance emerged inthe criminal contempt context, where ajudge had no pecuniary interest in the casebut had determined in an earlier proceed-ing whether criminal charges should bebrought and then proceeded to try andconvict the petitioners. In re Murchison,349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942.Finding that ‘‘no man can be a judge in hisown case,’’ and ‘‘no man is permitted to trycases where he has an interest in theoutcome,’’ id., at 136, 75 S.Ct. 623, theCourt noted that the circumstances of thecase and the prior relationship requiredrecusal. The judge’s prior relationshipwith the defendant, as well as the informa-tion acquired from the prior proceeding,was critical. In reiterating that the rulethat ‘‘a defendant in criminal contemptproceedings should be [tried] before ajudge other than the one reviled by thecontemnor,’’ Mayberry v. Pennsylvania,400 U.S. 455, 466, 91 S.Ct. 499, 27 L.Ed.2d

532, rests on the relationship between thejudge and the defendant, id., at 465, 91S.Ct. 499, the Court noted that the objec-tive inquiry is not whether the judge isactually biased, but whether the averagejudge in his position is likely to be neutralor there is an unconstitutional ‘‘ ‘potentialfor bias,’ ’’ id., at 466, 91 S.Ct. 499. Pp.2261 – 2262.

(b) Because the objective standardsimplementing the Due Process Clause donot require proof of actual bias, this Courtdoes not question Justice Benjamin’s sub-jective findings of impartiality and propri-ety and need not determine whether therewas actual bias. Rather, the question iswhether, ‘‘under a realistic appraisal ofpsychological tendencies and human weak-ness,’’ the interest ‘‘poses such a risk ofactual bias or prejudgment that the prac-tice must be forbidden if the guarantee ofdue process is to be adequately implement-ed.’’ Withrow, 421 U.S., at 47, 95 S.Ct.1456. There is a serious risk of actual biaswhen a person with a personal stake in aparticular case had a significant and dis-proportionate influence in placing thejudge on the case by raising funds ordirecting the judge’s election campaignwhen the case was pending or imminent.The proper inquiry centers on the contri-bution’s relative size in comparison to thetotal amount contributed to the campaign,the total amount spent in the election, andthe apparent effect of the contribution onthe outcome. It is not whether the contri-butions were a necessary and sufficientcause of Benjamin’s victory. In an elec-tion decided by fewer than 50,000 votes,Blankenship’s campaign contributions—compared to the total amount contributedto the campaign, as well as the totalamount spent in the election—had a signif-icant and disproportionate influence on theoutcome. And the risk that Blankenship’sinfluence engendered actual bias is suffi-


ciently substantial that it ‘‘must be forbid-den if the guarantee of due process is to beadequately implemented.’’ Ibid. Thetemporal relationship between the cam-paign contributions, the justice’s election,and the pendency of the case is also criti-cal, for it was reasonably foreseeable thatthe pending case would be before the new-ly elected justice. There is no allegationof a quid pro quo agreement, but theextraordinary contributions were made ata time when Blankenship had a vestedstake in the outcome. Just as no man isallowed to be a judge in his own cause,similar fears of bias can arise when—with-out the other parties’ consent—a manchooses the judge in his own cause. Ap-plying this principle to the judicial electionprocess, there was here a serious, objec-tive risk of actual bias that required Jus-tice Benjamin’s recusal. Pp. 2262 – 2265.

(c) Massey and its amici err in pre-dicting that this decision will lead to ad-verse consequences ranging from a flood ofrecusal motions to unnecessary interfer-ence with judicial elections. They point tono other instance involving judicial cam-paign contributions that presents a poten-tial for bias comparable to the circum-stances in this case, which are extreme byany measure. And because the Statesmay have codes of conduct with more rig-orous recusal standards than due processrequires, most recusal disputes will be re-solved without resort to the Constitution,making the constitutional standard’s appli-cation rare. Pp. 2265 – 2267.

–––– W.Va. ––––, –––– S.E.2d ––––,2008 WL 918444, reversed and remanded.

KENNEDY, J., delivered the opinionof the Court, in which STEVENS,SOUTER, GINSBURG, and BREYER,JJ., joined. ROBERTS, C.J., filed adissenting opinion, in which SCALIA,THOMAS, and ALITO, JJ., joined.SCALIA, J., filed a dissenting opinion.

Theodore B. Olson, Charleston, WV, forpetitioners.

Andrew L. Frey, New York, NY, forrespondents.

David B. Fawcett, Buchanan Ingersoll &Rooney PC, Pittsburgh, PA, Bruce E.Stanley, Reed Smith LLP, Pittsburgh, PA,Theodore B. Olson, Counsel of Record,Matthew D. McGill, Amir C. Tayrani, Gib-son, Dunn & Crutcher LLP, Washington,D.C., Robert V. Berthold, Jr., Berthold,Tiano & O’Dell, Charleston, WV, for peti-tioners.

Evan M. Tager, Dan Himmelfarb, Jef-frey A. Berger, Mayer Brown LLP, Wash-ington, DC, Eugene Volokh, Los Angeles,CA, Andrew L. Frey, Counsel of Record,Mayer Brown LLP, New York, NY, LewisF. Powell III, Ryan A. Shores, Robert W.Loftin, Hunton & Williams LLP, Rich-mond, VA, D.C. Offutt, Jr., Offutt Nord,PLLC, Huntington, WV, for respondents.

For U.S. Supreme Court Briefs, see:

2008 WL 5433361 (Pet.Brief)

2009 WL 556375 (Pet.Brief)

2009 WL 216165 (Resp.Brief)

2009 WL 476570 (Reply.Brief)

Justice KENNEDY delivered theopinion of the Court.

In this case the Supreme Court of Ap-peals of West Virginia reversed a trialcourt judgment, which had entered a juryverdict of $50 million. Five justices heardthe case, and the vote to reverse was 3 to2. The question presented is whether theDue Process Clause of the FourteenthAmendment was violated when one of thejustices in the majority denied a recusalmotion. The basis for the motion was thatthe justice had received campaign contri-butions in an extraordinary amount from,and through the efforts of, the board chair-


man and principal officer of the corpora-tion found liable for the damages.

Under our precedents there are objec-tive standards that require recusal when‘‘the probability of actual bias on the partof the judge or decisionmaker is too highto be constitutionally tolerable.’’ Withrowv. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456,43 L.Ed.2d 712 (1975). Applying thoseprecedents, we find that, in all the circum-stances of this case, due process requiresrecusal.

I

In August 2002 a West Virginia juryreturned a verdict that found respondentsA.T. Massey Coal Co. and its affiliates(hereinafter Massey) liable for fraudulentmisrepresentation, concealment, and tor-tious interference with existing contractualrelations. The jury awarded petitionersHugh Caperton, Harman DevelopmentCorp., Harman Mining Corp., and Sover-eign Coal Sales (hereinafter Caperton) thesum of $50 million in compensatory andpunitive damages.

In June 2004 the state trial court deniedMassey’s post-trial motions challenging theverdict and the damages award, findingthat Massey ‘‘intentionally acted in utterdisregard of [Caperton’s] rights and ulti-mately destroyed [Caperton’s] businessesbecause, after conducting cost-benefit anal-yses, [Massey] concluded it was in its fi-nancial interest to do so.’’ App. 32a,¶ 10(p). In March 2005 the trial courtdenied Massey’s motion for judgment as amatter of law.

Don Blankenship is Massey’s chairman,chief executive officer, and president. Af-ter the verdict but before the appeal, WestVirginia held its 2004 judicial elections.Knowing the Supreme Court of Appeals ofWest Virginia would consider the appeal inthe case, Blankenship decided to supportan attorney who sought to replace Justice

McGraw. Justice McGraw was a candi-date for reelection to that court. The at-torney who sought to replace him wasBrent Benjamin.

In addition to contributing the $1,000statutory maximum to Benjamin’s cam-paign committee, Blankenship donated al-most $2.5 million to ‘‘And For The Sake OfThe Kids,’’ a political organization formedunder 26 U.S.C. § 527. The § 527 organi-zation opposed McGraw and supportedBenjamin. App. 672a–673a. Blanken-ship’s donations accounted for more thantwo-thirds of the total funds it raised. Id.,at 150a. This was not all. Blankenshipspent, in addition, just over $500,000 onindependent expenditures—for direct mail-ings and letters soliciting donations as wellas television and newspaper advertise-ments—‘‘ ‘to support TTT Brent Benja-min.’ ’’ Id., at 184a, 186a, 200a (bold type-face omitted) (quoting Blankenship’s statecampaign financial disclosure filings).

To provide some perspective, Blanken-ship’s $3 million in contributions weremore than the total amount spent by allother Benjamin supporters and threetimes the amount spent by Benjamin’s owncommittee. Id., at 288a. Caperton con-tends that Blankenship spent $1 millionmore than the total amount spent by thecampaign committees of both candidatescombined. Brief for Petitioners 28.

Benjamin won. He received 382,036votes (53.3%), and McGraw received 334,-301 votes (46.7%). App. 677a.

In October 2005, before Massey filed itspetition for appeal in West Virginia’s high-est court, Caperton moved to disqualifynow-Justice Benjamin under the Due Pro-cess Clause and the West Virginia Code ofJudicial Conduct, based on the conflictcaused by Blankenship’s campaign involve-ment. Justice Benjamin denied the mo-tion in April 2006. He indicated that he


‘‘carefully considered the bases and accom-panying exhibits proffered by the mov-ants.’’ But he found ‘‘no objective infor-mation TTT to show that this Justice has abias for or against any litigant, that thisJustice has prejudged the matters whichcomprise this litigation, or that this Justicewill be anything but fair and impartial.’’Id., at 336a–337a. In December 2006 Mas-sey filed its petition for appeal to challengethe adverse jury verdict. The West Virgi-nia Supreme Court of Appeals grantedreview.

In November 2007 that court reversedthe $50 million verdict against Massey.The majority opinion, authored by then-Chief Justice Davis and joined by JusticesBenjamin and Maynard, found that ‘‘Mas-sey’s conduct warranted the type of judg-ment rendered in this case.’’ Id., at 357a.It reversed, nevertheless, based on twoindependent grounds—first, that a forum-selection clause contained in a contract towhich Massey was not a party barred thesuit in West Virginia, and, second, that resjudicata barred the suit due to an out-of-state judgment to which Massey was not aparty. Id., at 345a. Justice Starcher dis-sented, stating that the ‘‘majority’s opinionis morally and legally wrong.’’ Id., at420a–422a. Justice Albright also dissent-ed, accusing the majority of ‘‘misapplyingthe law and introducing sweeping ‘newlaw’ into our jurisprudence that may wellcome back to haunt us.’’ Id., at 430a–431a.

Caperton sought rehearing, and the par-ties moved for disqualification of three ofthe five justices who decided the appeal.Photos had surfaced of Justice Maynardvacationing with Blankenship in theFrench Riviera while the case was pend-ing. Id., at 440a–441a, 456a. JusticeMaynard granted Caperton’s recusal mo-tion. On the other side Justice Starchergranted Massey’s recusal motion, appar-ently based on his public criticism of

Blankenship’s role in the 2004 elections.In his recusal memorandum JusticeStarcher urged Justice Benjamin to recusehimself as well. He noted that ‘‘Blanken-ship’s bestowal of his personal wealth, po-litical tactics, and ‘friendship’ have createda cancer in the affairs of this Court.’’ Id.,at 459a–460a. Justice Benjamin declinedJustice Starcher’s suggestion and deniedCaperton’s recusal motion.

The court granted rehearing. JusticeBenjamin, now in the capacity of actingchief justice, selected Judges Cookmanand Fox to replace the recused justices.Caperton moved a third time for disqualifi-cation, arguing that Justice Benjamin hadfailed to apply the correct standard underWest Virginia law—i.e., whether ‘‘a rea-sonable and prudent person, knowingthese objective facts, would harbor doubtsabout Justice Benjamin’s ability to be fairand impartial.’’ Id., at 466a, ¶ 8. Caper-ton also included the results of a publicopinion poll, which indicated that over 67%of West Virginians doubted Justice Benja-min would be fair and impartial. JusticeBenjamin again refused to withdraw, not-ing that the ‘‘push poll’’ was ‘‘neither credi-ble nor sufficiently reliable to serve as thebasis for an elected judge’s disqualifica-tion.’’ Id., at 483a.

In April 2008 a divided court again re-versed the jury verdict, and again it was a3–to–2 decision. Justice Davis filed amodified version of his prior opinion, re-peating the two earlier holdings. She wasjoined by Justice Benjamin and JudgeFox. Justice Albright, joined by JudgeCookman, dissented: ‘‘Not only is the ma-jority opinion unsupported by the factsand existing case law, but it is also funda-mentally unfair. Sadly, justice was nei-ther honored nor served by the majori-ty.’’ –––– W.Va. ––––, ––––, –––– S.E.2d––––, ––––, 2008 WL 918444; App. 633a.The dissent also noted ‘‘genuine due pro-


cess implications arising under federallaw’’ with respect to Justice Benjamin’sfailure to recuse himself. –––– W.Va., at––––, n. 16, –––– S.E.2d, at ––––, n. 16,2008 WL 918444; App. 634a, n. 16 (citingAetna Life Ins. Co. v. Lavoie, 475 U.S.813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986);In re Murchison, 349 U.S. 133, 136, 75S.Ct. 623, 99 L.Ed. 942 (1955)).

Four months later—a month after thepetition for writ of certiorari was filed inthis Court—Justice Benjamin filed a con-curring opinion. He defended the meritsof the majority opinion as well as his deci-sion not to recuse. He rejected Caper-ton’s challenge to his participation in thecase under both the Due Process Clauseand West Virginia law. Justice Benjaminreiterated that he had no ‘‘ ‘direct, person-al, substantial, pecuniary interest’ in thiscase.’ ’’ –––– W.Va., at ––––, –––– S.E.2d,at ––––, 2008 WL 918444; App. 677a (quot-ing Lavoie, supra, at 822, 106 S.Ct. 1580).Adopting ‘‘a standard merely of ‘appear-ances,’ ’’ he concluded, ‘‘seems little morethan an invitation to subject West Virgi-nia’s justice system to the vagaries of theday—a framework in which predictabilityand stability yield to supposition, innuen-do, half-truths, and partisan manipu-lations.’’ –––– W.Va., at ––––, ––––S.E.2d, at ––––, 2008 WL 918444; App.692a.

We granted certiorari. 555 U.S. ––––,129 S.Ct. 593, ––– L.Ed.2d –––– (2008).

II

[1, 2] It is axiomatic that ‘‘[a] fair trialin a fair tribunal is a basic requirement ofdue process.’’ Murchison, supra, at 136,75 S.Ct. 623. As the Court has recog-nized, however, ‘‘most matters relating tojudicial disqualification [do] not rise to aconstitutional level.’’ FTC v. Cement In-stitute, 333 U.S. 683, 702, 68 S.Ct. 793, 92L.Ed. 1010 (1948). The early and leading

case on the subject is Tumey v. Ohio, 273U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).There, the Court stated that ‘‘matters ofkinship, personal bias, state policy, remote-ness of interest, would seem generally tobe matters merely of legislative discre-tion.’’ Id., at 523, 47 S.Ct. 437.

The Tumey Court concluded that theDue Process Clause incorporated the com-mon-law rule that a judge must recusehimself when he has ‘‘a direct, personal,substantial, pecuniary interest’’ in a case.Ibid. This rule reflects the maxim that‘‘[n]o man is allowed to be a judge in hisown cause; because his interest would cer-tainly bias his judgment, and, not improb-ably, corrupt his integrity.’’ The Federal-ist No. 10, p. 59 (J. Cooke ed.1961) (J.Madison); see Frank, Disqualification ofJudges, 56 Yale L.J. 605, 611–612 (1947)(same). Under this rule, ‘‘disqualificationfor bias or prejudice was not permitted’’;those matters were left to statutes andjudicial codes. Lavoie, supra, at 820, 106S.Ct. 1580; see also Part IV, infra (dis-cussing judicial codes). Personal bias orprejudice ‘‘alone would not be sufficientbasis for imposing a constitutional require-ment under the Due Process Clause.’’ La-voie, supra, at 820, 106 S.Ct. 1580.

[3] As new problems have emergedthat were not discussed at common law,however, the Court has identified addition-al instances which, as an objective matter,require recusal. These are circumstances‘‘in which experience teaches that theprobability of actual bias on the part of thejudge or decisionmaker is too high to beconstitutionally tolerable.’’ Withrow, 421U.S., at 47, 95 S.Ct. 1456. To place thepresent case in proper context, two in-stances where the Court has required re-cusal merit further discussion.

A

The first involved the emergence of localtribunals where a judge had a financial


interest in the outcome of a case, althoughthe interest was less than what would havebeen considered personal or direct at com-mon law.

This was the problem addressed in Tu-mey. There, the mayor of a village hadthe authority to sit as a judge (with nojury) to try those accused of violating astate law prohibiting the possession of al-coholic beverages. Inherent in this struc-ture were two potential conflicts. First,the mayor received a salary supplementfor performing judicial duties, and thefunds for that compensation derived fromthe fines assessed in a case. No fineswere assessed upon acquittal. The mayor-judge thus received a salary supplementonly if he convicted the defendant. 273U.S., at 520, 47 S.Ct. 437. Second, sumsfrom the criminal fines were deposited tothe village’s general treasury fund for vil-lage improvements and repairs. Id., at522, 47 S.Ct. 437.

The Court held that the Due ProcessClause required disqualification ‘‘both be-cause of [the mayor-judge’s] direct pecuni-ary interest in the outcome, and because ofhis official motive to convict and to gradu-ate the fine to help the financial needs ofthe village.’’ Id., at 535, 47 S.Ct. 437. Itso held despite observing that ‘‘[t]here aredoubtless mayors who would not allowsuch a consideration as $12 costs in eachcase to affect their judgment in it.’’ Id., at532, 47 S.Ct. 437. The Court articulatedthe controlling principle:

‘‘Every procedure which would offer apossible temptation to the average manas a judge to forget the burden of proofrequired to convict the defendant, orwhich might lead him not to hold thebalance nice, clear and true between theState and the accused, denies the latterdue process of law.’’ Ibid.

The Court was thus concerned with morethan the traditional common-law prohibi-

tion on direct pecuniary interest. It wasalso concerned with a more general con-cept of interests that tempt adjudicators todisregard neutrality.

This concern with conflicts resultingfrom financial incentives was elaborated inWard v. Monroeville, 409 U.S. 57, 93 S.Ct.80, 34 L.Ed.2d 267 (1972), which invalidat-ed a conviction in another mayor’s court.In Monroeville, unlike in Tumey, the may-or received no money; instead, the finesthe mayor assessed went to the town’sgeneral fisc. The Court held that ‘‘[t]hefact that the mayor [in Tumey ] shareddirectly in the fees and costs did not definethe limits of the principle.’’ 409 U.S., at60, 93 S.Ct. 80. The principle, instead,turned on the ‘‘ ‘possible temptation’ ’’ themayor might face; the mayor’s ‘‘executiveresponsibilities for village finances maymake him partisan to maintain the highlevel of contribution [to those finances]from the mayor’s court.’’ Ibid. As theCourt reiterated in another case thatTerm, ‘‘the [judge’s] financial stake neednot be as direct or positive as it appearedto be in Tumey.’’ Gibson v. Berryhill, 411U.S. 564, 579, 93 S.Ct. 1689, 36 L.Ed.2d488 (1973) (an administrative board com-posed of optometrists had a pecuniary in-terest of ‘‘sufficient substance’’ so that itcould not preside over a hearing againstcompeting optometrists).

The Court in Lavoie further clarified thereach of the Due Process Clause regardinga judge’s financial interest in a case.There, a justice had cast the deciding voteon the Alabama Supreme Court to upholda punitive damages award against an in-surance company for bad-faith refusal topay a claim. At the time of his vote, thejustice was the lead plaintiff in a nearlyidentical lawsuit pending in Alabama’s low-er courts. His deciding vote, this Courtsurmised, ‘‘undoubtedly ‘raised thestakes’ ’’ for the insurance defendant in the


justice’s suit. 475 U.S., at 823–824, 106S.Ct. 1580.

The Court stressed that it was ‘‘not re-quired to decide whether in fact [the jus-tice] was influenced.’’ Id., at 825, 106S.Ct. 1580. The proper constitutional in-quiry is ‘‘whether sitting on the case thenbefore the Supreme Court of Alabama‘ ‘‘would offer a possible temptation to theaverage TTT judge to TTT lead him not tohold the balance nice, clear and true.’’ ’ ’’Ibid. (quoting Monroeville, supra, at 60, 93S.Ct. 80, in turn quoting Tumey, supra, at532, 47 S.Ct. 437). The Court underscoredthat ‘‘what degree or kind of interest issufficient to disqualify a judge from sitting‘cannot be defined with precision.’ ’’ 475U.S., at 822, 106 S.Ct. 1580 (quoting Mur-chison, 349 U.S., at 136, 75 S.Ct. 623). Inthe Court’s view, however, it was impor-tant that the test have an objective compo-nent.

The Lavoie Court proceeded to distin-guish the state court justice’s particularinterest in the case, which required recu-sal, from interests that were not a consti-tutional concern. For instance, ‘‘while [theother] justices might conceivably have hada slight pecuniary interest’’ due to theirpotential membership in a class-action suitagainst their own insurance companies,that interest is ‘‘ ‘too remote and insub-stantial to violate the constitutional con-straints.’ ’’ 475 U.S., at 825–826, 106 S.Ct.1580 (quoting Marshall v. Jerrico, Inc.,446 U.S. 238, 243, 100 S.Ct. 1610, 64L.Ed.2d 182 (1980)).

B

The second instance requiring recusalthat was not discussed at common lawemerged in the criminal contempt context,where a judge had no pecuniary interest inthe case but was challenged because of aconflict arising from his participation in anearlier proceeding. This Court character-

ized that first proceeding (perhaps pejora-tively) as a ‘‘ ‘one-man grand jury.’ ’’ Mur-chison, 349 U.S., at 133, 75 S.Ct. 623.

In that first proceeding, and as providedby state law, a judge examined witnessesto determine whether criminal chargesshould be brought. The judge called thetwo petitioners before him. One petitioneranswered questions, but the judge foundhim untruthful and charged him with per-jury. The second declined to answer onthe ground that he did not have counselwith him, as state law seemed to permit.The judge charged him with contempt.The judge proceeded to try and convictboth petitioners. Id., at 134–135, 75 S.Ct.623.

This Court set aside the convictions ongrounds that the judge had a conflict ofinterest at the trial stage because of hisearlier participation followed by his deci-sion to charge them. The Due ProcessClause required disqualification. TheCourt recited the general rule that ‘‘noman can be a judge in his own case,’’adding that ‘‘no man is permitted to trycases where he has an interest in theoutcome.’’ Id., at 136, 75 S.Ct. 623. Itnoted that the disqualifying criteria ‘‘can-not be defined with precision. Circum-stances and relationships must be consid-ered.’’ Ibid. These circumstances and theprior relationship required recusal: ‘‘Hav-ing been a part of [the one-man grandjury] process a judge cannot be, in thevery nature of things, wholly disinterestedin the conviction or acquittal of those ac-cused.’’ Id., at 137, 75 S.Ct. 623. That isbecause ‘‘[a]s a practical matter it is diffi-cult if not impossible for a judge to freehimself from the influence of what tookplace in his ‘grand-jury’ secret session.’’Id., at 138, 75 S.Ct. 623.

The Murchison Court was careful todistinguish the circumstances and the rela-tionship from those where the Constitution


would not require recusal. It noted thatthe single-judge grand jury is ‘‘more a partof the accusatory process than an ordinarylay grand juror,’’ and that ‘‘adjudication bya trial judge of a contempt committed in [ajudge’s] presence in open court cannot belikened to the proceedings here.’’ Id., at137, 75 S.Ct. 623. The judge’s prior rela-tionship with the defendant, as well as theinformation acquired from the prior pro-ceeding, was of critical import.

Following Murchison the Court held inMayberry v. Pennsylvania, 400 U.S. 455,466, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971),‘‘that by reason of the Due Process Clauseof the Fourteenth Amendment a defendantin criminal contempt proceedings shouldbe given a public trial before a judge otherthan the one reviled by the contemnor.’’The Court reiterated that this rule restson the relationship between the judge andthe defendant: ‘‘[A] judge, vilified as wasthis Pennsylvania judge, necessarily be-comes embroiled in a running, bitter con-troversy. No one so cruelly slandered islikely to maintain that calm detachmentnecessary for fair adjudication.’’ Id., at465, 91 S.Ct. 499.

[4] Again, the Court considered thespecific circumstances presented by thecase. It noted that ‘‘not every attack on ajudge TTT disqualifies him from sitting.’’Ibid. The Court distinguished the casefrom Ungar v. Sarafite, 376 U.S. 575, 84S.Ct. 841, 11 L.Ed.2d 921 (1964), in whichthe Court had ‘‘ruled that a lawyer’s chal-lenge, though ‘disruptive, recalcitrant anddisagreeable commentary,’ was still not ‘aninsulting attack upon the integrity of thejudge carrying such potential for bias as torequire disqualification.’ ’’ Mayberry, su-pra, at 465–466, 91 S.Ct. 499 (quoting Un-gar, supra, at 584, 84 S.Ct. 841). Theinquiry is an objective one. The Courtasks not whether the judge is actually,subjectively biased, but whether the aver-

age judge in his position is ‘‘likely’’ to beneutral, or whether there is an unconstitu-tional ‘‘potential for bias.’’

III

Based on the principles described inthese cases we turn to the issue before us.This problem arises in the context of judi-cial elections, a framework not presentedin the precedents we have reviewed anddiscussed.

Caperton contends that Blankenship’spivotal role in getting Justice Benjaminelected created a constitutionally intoler-able probability of actual bias. Thoughnot a bribe or criminal influence, JusticeBenjamin would nevertheless feel a debt ofgratitude to Blankenship for his extraordi-nary efforts to get him elected. Thattemptation, Caperton claims, is as strongand inherent in human nature as was theconflict the Court confronted in Tumeyand Monroeville when a mayor-judge (orthe city) benefited financially from a defen-dant’s conviction, as well as the conflictidentified in Murchison and Mayberrywhen a judge was the object of a defen-dant’s contempt.

Justice Benjamin was careful to addressthe recusal motions and explain his rea-sons why, on his view of the controllingstandard, disqualification was not in order.In four separate opinions issued during thecourse of the appeal, he explained why noactual bias had been established. Hefound no basis for recusal because Caper-ton failed to provide ‘‘objective evidence’’or ‘‘objective information,’’ but merely‘‘subjective belief’’ of bias. –––– W.Va., at––––, –––– – ––––, –––– S.E.2d, at ––––,–––– – ––––, 2008 WL 918444; App. 336a,337a–338a, 444a–445a. Nor could anyone‘‘point to any actual conduct or activity on[his] part which could be termed ‘improp-er.’ ’’ –––– W.Va., at –––– – ––––, ––––S.E.2d, at –––– – ––––, 2008 WL 918444;


App. 655a–656a. In other words, based onthe facts presented by Caperton, JusticeBenjamin conducted a probing search intohis actual motives and inclinations; and hefound none to be improper. We do notquestion his subjective findings of impar-tiality and propriety. Nor do we deter-mine whether there was actual bias.

Following accepted principles of our le-gal tradition respecting the proper per-formance of judicial functions, judges ofteninquire into their subjective motives andpurposes in the ordinary course of decid-ing a case. This does not mean the inqui-ry is a simple one. ‘‘The work of decidingcases goes on every day in hundreds ofcourts throughout the land. Any judge,one might suppose, would find it easy todescribe the process which he had followeda thousand times and more. Nothingcould be farther from the truth.’’ B. Car-dozo, The Nature of the Judicial Process 9(1921).

The judge inquires into reasons thatseem to be leading to a particular result.Precedent and stare decisis and the textand purpose of the law and the Constitu-tion; logic and scholarship and experienceand common sense; and fairness and disin-terest and neutrality are among the fac-tors at work. To bring coherence to theprocess, and to seek respect for the result-ing judgment, judges often explain the rea-sons for their conclusions and rulings.There are instances when the introspectionthat often attends this process may revealthat what the judge had assumed to be aproper, controlling factor is not the realone at work. If the judge discovers thatsome personal bias or improper consider-ation seems to be the actuating cause ofthe decision or to be an influence so diffi-cult to dispel that there is a real possibilityof undermining neutrality, the judge maythink it necessary to consider withdrawingfrom the case.

[5, 6] The difficulties of inquiring intoactual bias, and the fact that the inquiry isoften a private one, simply underscore theneed for objective rules. Otherwise theremay be no adequate protection against ajudge who simply misreads or misappre-hends the real motives at work in decidingthe case. The judge’s own inquiry intoactual bias, then, is not one that the lawcan easily superintend or review, thoughactual bias, if disclosed, no doubt would begrounds for appropriate relief. In lieu ofexclusive reliance on that personal inquiry,or on appellate review of the judge’s deter-mination respecting actual bias, the DueProcess Clause has been implemented byobjective standards that do not requireproof of actual bias. See Tumey, 273 U.S.,at 532, 47 S.Ct. 437; Mayberry, 400 U.S.,at 465–466, 91 S.Ct. 499; Lavoie, 475 U.S., at 825, 106 S.Ct. 1580. In definingthese standards the Court has askedwhether, ‘‘under a realistic appraisal ofpsychological tendencies and human weak-ness,’’ the interest ‘‘poses such a risk ofactual bias or prejudgment that the prac-tice must be forbidden if the guarantee ofdue process is to be adequately implement-ed.’’ Withrow, 421 U.S., at 47, 95 S.Ct.1456.

[7–9] We turn to the influence at issuein this case. Not every campaign contri-bution by a litigant or attorney creates aprobability of bias that requires a judge’srecusal, but this is an exceptional case.Cf. Mayberry, supra, at 465, 91 S.Ct. 499(‘‘It is, of course, not every attack on ajudge that disqualifies him from sitting’’);Lavoie, supra, at 825–826, 106 S.Ct. 1580(some pecuniary interests are ‘‘ ‘too remoteand insubstantial’ ’’). We conclude thatthere is a serious risk of actual bias—based on objective and reasonable percep-tions—when a person with a personalstake in a particular case had a significantand disproportionate influence in placing


the judge on the case by raising funds ordirecting the judge’s election campaignwhen the case was pending or imminent.The inquiry centers on the contribution’srelative size in comparison to the totalamount of money contributed to the cam-paign, the total amount spent in the elec-tion, and the apparent effect such contri-bution had on the outcome of the election.

[10] Applying this principle, we con-clude that Blankenship’s campaign effortshad a significant and disproportionate in-fluence in placing Justice Benjamin on thecase. Blankenship contributed some $3million to unseat the incumbent and re-place him with Benjamin. His contribu-tions eclipsed the total amount spent by allother Benjamin supporters and exceededby 300% the amount spent by Benjamin’scampaign committee. App. 288a. Caper-ton claims Blankenship spent $1 millionmore than the total amount spent by thecampaign committees of both candidatescombined. Brief for Petitioners 28.

Massey responds that Blankenship’ssupport, while significant, did not causeBenjamin’s victory. In the end the peopleof West Virginia elected him, and they didso based on many reasons other thanBlankenship’s efforts. Massey points outthat every major state newspaper, but one,endorsed Benjamin. Brief for Respon-dents 54. It also contends that then-Jus-tice McGraw cost himself the election bygiving a speech during the campaign, aspeech the opposition seized upon for itsown advantage. Ibid.

Justice Benjamin raised similar argu-ments. He asserted that ‘‘the outcome ofthe 2004 election was due primarily to [hisown] campaign’s message,’’ as well asMcGraw’s ‘‘devastat[ing]’’ speech in whichhe ‘‘made a number of controversial claimswhich became a matter of statewide dis-cussion in the media, on the internet, andelsewhere.’’ –––– W.Va., at ––––, and n.

29, –––– S.E.2d, at ––––, and n. 29, 2008WL 918444; App. 673a, 674a, and n. 29;see also –––– W.Va., at –––– – ––––, andnn. 35–39, –––– S.E.2d, at –––– – ––––, andnn. 35–39, 2008 WL 918444; App. 677a–680a, and nn. 35–39.

[11] Whether Blankenship’s campaigncontributions were a necessary and suffi-cient cause of Benjamin’s victory is not theproper inquiry. Much like determiningwhether a judge is actually biased, provingwhat ultimately drives the electorate tochoose a particular candidate is a difficultendeavor, not likely to lend itself to acertain conclusion. This is particularlytrue where, as here, there is no procedurefor judicial factfinding and the sole trier offact is the one accused of bias. Due pro-cess requires an objective inquiry intowhether the contributor’s influence on theelection under all the circumstances‘‘would offer a possible temptation to theaverage TTT judge to TTT lead him not tohold the balance nice, clear and true.’’Tumey, supra, at 532, 47 S.Ct. 437. In anelection decided by fewer than 50,000 votes(382,036 to 334,301), see –––– W.Va., at––––, –––– S.E.2d, at ––––, 2008 WL918444; App. 677a, Blankenship’s cam-paign contributions—in comparison to thetotal amount contributed to the campaign,as well as the total amount spent in theelection—had a significant and dispropor-tionate influence on the electoral outcome.And the risk that Blankenship’s influenceengendered actual bias is sufficiently sub-stantial that it ‘‘must be forbidden if theguarantee of due process is to be ade-quately implemented.’’ Withrow, supra,at 47, 95 S.Ct. 1456.

The temporal relationship between thecampaign contributions, the justice’s elec-tion, and the pendency of the case is alsocritical. It was reasonably foreseeable,when the campaign contributions weremade, that the pending case would be be-


fore the newly elected justice. The $50million adverse jury verdict had been en-tered before the election, and the SupremeCourt of Appeals was the next step oncethe state trial court dealt with post-trialmotions. So it became at once apparentthat, absent recusal, Justice Benjaminwould review a judgment that cost hisbiggest donor’s company $50 million. Al-though there is no allegation of a quid proquo agreement, the fact remains thatBlankenship’s extraordinary contributionswere made at a time when he had a vestedstake in the outcome. Just as no man isallowed to be a judge in his own cause,similar fears of bias can arise when—with-out the consent of the other parties—aman chooses the judge in his own cause.And applying this principle to the judicialelection process, there was here a serious,objective risk of actual bias that requiredJustice Benjamin’s recusal.

[12, 13] Justice Benjamin did under-take an extensive search for actual bias.But, as we have indicated, that is just onestep in the judicial process; objectivestandards may also require recusal wheth-er or not actual bias exists or can beproved. Due process ‘‘may sometimes bartrial by judges who have no actual biasand who would do their very best to weighthe scales of justice equally between con-tending parties.’’ Murchison, 349 U.S., at136, 75 S.Ct. 623. The failure to considerobjective standards requiring recusal isnot consistent with the imperatives of dueprocess. We find that Blankenship’s sig-nificant and disproportionate influence—coupled with the temporal relationship be-tween the election and the pending case—‘‘ ‘ ‘‘offer a possible temptation to the aver-age TTT judge to TTT lead him not to holdthe balance nice, clear and true.’’ ’ ’’ La-voie, 475 U.S., at 825, 106 S.Ct. 1580(quoting Monroeville, 409 U.S., at 60, 93S.Ct. 80, in turn quoting Tumey, 273 U.S.,

at 532, 47 S.Ct. 437). On these extremefacts the probability of actual bias rises toan unconstitutional level.

IV

Our decision today addresses an ex-traordinary situation where the Constitu-tion requires recusal. Massey and itsamici predict that various adverse conse-quences will follow from recognizing aconstitutional violation here—rangingfrom a flood of recusal motions to unnec-essary interference with judicial elections.We disagree. The facts now before usare extreme by any measure. The par-ties point to no other instance involvingjudicial campaign contributions that pres-ents a potential for bias comparable to thecircumstances in this case.

It is true that extreme cases often testthe bounds of established legal principles,and sometimes no administrable standardmay be available to address the perceivedwrong. But it is also true that extremecases are more likely to cross constitution-al limits, requiring this Court’s interven-tion and formulation of objective stan-dards. This is particularly true when dueprocess is violated. See, e.g., County ofSacramento v. Lewis, 523 U.S. 833, 846–847, 118 S.Ct. 1708, 140 L.Ed.2d 1043(1998) (reiterating the due-process prohibi-tion on ‘‘executive abuse of power TTT

which shocks the conscience’’); id., at 858,118 S.Ct. 1708 (KENNEDY, J., concur-ring) (explaining that ‘‘objective consider-ations, including history and precedent,are the controlling principle’’ of this dueprocess standard).

This Court’s recusal cases are illustra-tive. In each case the Court dealt withextreme facts that created an unconstitu-tional probability of bias that ‘‘ ‘cannot bedefined with precision.’ ’’ Lavoie, 475 U.S.,at 822, 106 S.Ct. 1580 (quoting Murchison,349 U.S., at 136, 75 S.Ct. 623). Yet the


Court articulated an objective standard toprotect the parties’ basic right to a fairtrial in a fair tribunal. The Court wascareful to distinguish the extreme facts ofthe cases before it from those intereststhat would not rise to a constitutional level.See, e.g., Lavoie, supra, at 825–826, 106S.Ct. 1580; Mayberry, 400 U.S., at 465–466, 91 S.Ct. 499; Murchison, supra, at137, 75 S.Ct. 623; see also Part II, supra.In this case we do nothing more than whatthe Court has done before.

As such, it is worth noting the effects, orlack thereof, of the Court’s prior decisions.Even though the standards announced inthose cases raised questions similar tothose that might be asked after our deci-sion today, the Court was not flooded withMonroeville or Murchison motions. Thatis perhaps due in part to the extreme factsthose standards sought to address.Courts proved quite capable of applyingthe standards to less extreme situations.

One must also take into account thejudicial reforms the States have imple-mented to eliminate even the appearanceof partiality. Almost every State—WestVirginia included—has adopted the Ameri-can Bar Association’s objective standard:‘‘A judge shall avoid impropriety and theappearance of impropriety.’’ ABA Anno-tated Model Code of Judicial Conduct,Canon 2 (2004); see Brief for AmericanBar Association as Amicus Curiae 14, andn. 29. The ABA Model Code’s test forappearance of impropriety is ‘‘whether theconduct would create in reasonable mindsa perception that the judge’s ability tocarry out judicial responsibilities with in-tegrity, impartiality and competence is im-paired.’’ Canon 2A, Commentary; seealso W. Va.Code of Judicial Conduct, Can-on 2A, and Commentary (2009) (same).

The West Virginia Code of Judicial Con-duct also requires a judge to ‘‘disqualifyhimself or herself in a proceeding in which

the judge’s impartiality might reasonablybe questioned.’’ Canon 3E(1); see also 28U.S.C. § 455(a) (‘‘Any justice, judge, ormagistrate judge of the United States shalldisqualify himself in any proceeding inwhich his impartiality might reasonably bequestioned’’). Under Canon 3E(1), ‘‘ ‘[t]hequestion of disqualification focuses onwhether an objective assessment of thejudge’s conduct produces a reasonablequestion about impartiality, not on thejudge’s subjective perception of the abilityto act fairly.’ ’’ State ex rel. Brown v. Diet-rick, 191 W.Va. 169, 174, n. 9, 444 S.E.2d47, 52, n. 9 (1994); see also Liteky v.United States, 510 U.S. 540, 558, 114 S.Ct.1147, 127 L.Ed.2d 474 (1994) (KENNEDY,J., concurring in judgment) (‘‘[U]nder [28U.S.C.] § 455(a), a judge should be dis-qualified only if it appears that he or sheharbors an aversion, hostility or dispositionof a kind that a fair-minded person couldnot set aside when judging the dispute’’).Indeed, some States require recusal basedon campaign contributions similar to thosein 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 main-tain the integrity of the judiciary and therule of law. The Conference of the ChiefJustices has underscored that the codesare ‘‘[t]he principal safeguard against judi-cial campaign abuses’’ that threaten to im-peril ‘‘public confidence in the fairness andintegrity of the nation’s elected judges.’’Brief for Conference of Chief Justices asAmicus Curiae 4, 11. This is a vital stateinterest:

‘‘Courts, in our system, elaborate princi-ples of law in the course of resolvingdisputes. The power and the preroga-tive of a court to perform this functionrest, in the end, upon the respect ac-corded to its judgments. The citizen’srespect for judgments depends in turn


upon the issuing court’s absolute probi-ty. Judicial integrity is, in consequence,a state interest of the highest order.’’Republican Party of Minn. v. White,536 U.S. 765, 793, 122 S.Ct. 2528, 153L.Ed.2d 694 (2002) (KENNEDY, J.,concurring).

It is for this reason that States may chooseto ‘‘adopt recusal standards more rigorousthan due process requires.’’ Id., at 794,122 S.Ct. 2528; see also Bracy v. Gramley,520 U.S. 899, 904, 117 S.Ct. 1793, 138L.Ed.2d 97 (1997) (distinguishing the ‘‘con-stitutional floor’’ from the ceiling set ‘‘bycommon law, statute, or the professionalstandards of the bench and bar’’).

[14] ‘‘The Due Process Clause de-marks only the outer boundaries of judicialdisqualifications. Congress and the states,of course, remain free to impose morerigorous standards for judicial disqualifica-tion than those we find mandated heretoday.’’ Lavoie, supra, at 828, 106 S.Ct.1580. Because the codes of judicial con-duct provide more protection than due pro-cess requires, most disputes over disquali-fication will be resolved without resort tothe Constitution. Application of the con-stitutional standard implicated in this casewill thus be confined to rare instances.

* * *

The judgment of the Supreme Court ofAppeals of West Virginia is reversed, andthe case is remanded for further proceed-ings not inconsistent with this opinion.

It is so ordered.

Chief Justice ROBERTS, with whomJustice SCALIA, Justice THOMAS, andJustice ALITO join, dissenting.

I, of course, share the majority’s sincereconcerns about the need to maintain a fair,independent, and impartial judiciary—andone that appears to be such. But I fear

that the Court’s decision will underminerather than promote these values.

Until today, we have recognized exactlytwo situations in which the Federal DueProcess Clause requires disqualification ofa judge: when the judge has a financialinterest in the outcome of the case, andwhen the judge is trying a defendant forcertain criminal contempts. Vaguer no-tions of bias or the appearance of biaswere never a basis for disqualification, ei-ther at common law or under our constitu-tional precedents. Those issues were in-stead addressed by legislation or courtrules.

Today, however, the Court enlists theDue Process Clause to overturn a judge’sfailure to recuse because of a ‘‘probabilityof bias.’’ Unlike the established groundsfor disqualification, a ‘‘probability of bias’’cannot be defined in any limited way. TheCourt’s new ‘‘rule’’ provides no guidance tojudges and litigants about when recusalwill be constitutionally required. This willinevitably lead to an increase in allegationsthat judges are biased, however ground-less those charges may be. The end resultwill do far more to erode public confidencein judicial impartiality than an isolated fail-ure to recuse in a particular case.

I

There is a ‘‘presumption of honesty andintegrity in those serving as adjudicators.’’Withrow v. Larkin, 421 U.S. 35, 47, 95S.Ct. 1456, 43 L.Ed.2d 712 (1975). Alljudges take an oath to uphold the Consti-tution and apply the law impartially, andwe trust that they will live up to thispromise. See Republican Party of Minn.v. White, 536 U.S. 765, 796, 122 S.Ct. 2528,153 L.Ed.2d 694 (2002) (KENNEDY, J.,concurring) (‘‘We should not, even by inad-vertence, ‘impute to judges a lack of firm-ness, wisdom, or honor’ ’’ (quoting Bridgesv. California, 314 U.S. 252, 273, 62 S.Ct.


190, 86 L.Ed. 192 (1941))). We have thusidentified only two situations in which theDue Process Clause requires disqualifica-tion of a judge: when the judge has afinancial interest in the outcome of thecase, and when the judge is presiding overcertain types of criminal contempt pro-ceedings.

It is well established that a judge maynot preside over a case in which he has a‘‘direct, personal, substantial pecuniary in-terest.’’ Tumey v. Ohio, 273 U.S. 510, 523,47 S.Ct. 437, 71 L.Ed. 749 (1927). Thisprinciple is relatively straightforward, andlargely tracks the longstanding common-law rule regarding judicial recusal. SeeFrank, Disqualification of Judges, 56 YaleL.J. 605, 609 (1947) (‘‘The common law ofdisqualification TTT was clear and simple:a judge was disqualified for direct pecuni-ary interest and for nothing else’’). Forexample, a defendant’s due process rightsare violated when he is tried before ajudge who is ‘‘paid for his service onlywhen he convicts the defendant.’’ Tumey,supra, at 531, 47 S.Ct. 437; see also AetnaLife Ins. Co. v. Lavoie, 475 U.S. 813, 824,106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (re-cusal required when the judge’s decision ina related case ‘‘had the clear and immedi-ate effect of enhancing both the legal sta-tus and the settlement value of his owncase’’); Connally v. Georgia, 429 U.S. 245,250, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977)(per curiam).

It may also violate due process when ajudge presides over a criminal contemptcase that resulted from the defendant’shostility towards the judge. In Mayberryv. Pennsylvania, 400 U.S. 455, 91 S.Ct.499, 27 L.Ed.2d 532 (1971), the defendantdirected a steady stream of expletives andad hominem attacks at the judge through-out the trial. When that defendant wassubsequently charged with criminal con-tempt, we concluded that he ‘‘should be

given a public trial before a judge otherthan the one reviled by the contemnor.’’Id., at 466, 91 S.Ct. 499; see also Taylor v.Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 41L.Ed.2d 897 (1974) (a judge who had ‘‘be-come embroiled in a running controversy’’with the defendant could not subsequentlypreside over that defendant’s criminal con-tempt trial).

Our decisions in this area have also em-phasized when the Due Process Clausedoes not require recusal:

‘‘All questions of judicial qualificationmay not involve constitutional validity.Thus matters of kinship, personal bias,state policy, remoteness of interest,would seem generally to be mattersmerely of legislative discretion.’’ Tu-mey, supra, at 523, 47 S.Ct. 437; seealso Lavoie, supra, at 820, 106 S.Ct.1580.

Subject to the two well-established excep-tions described above, questions of judicialrecusal are regulated by ‘‘common law,statute, or the professional standards ofthe bench and bar.’’ Bracy v. Gramley,520 U.S. 899, 904, 117 S.Ct. 1793, 138L.Ed.2d 97 (1997).

In any given case, there are a number offactors that could give rise to a ‘‘probabili-ty’’ or ‘‘appearance’’ of bias: friendshipwith a party or lawyer, prior employmentexperience, membership in clubs or associ-ations, prior speeches and writings, reli-gious affiliation, and countless other con-siderations. We have never held that theDue Process Clause requires recusal forany of these reasons, even though theycould be viewed as presenting a ‘‘probabili-ty of bias.’’ Many state statutes requirerecusal based on a probability or appear-ance of bias, but ‘‘that alone would not besufficient basis for imposing a constitu-tional requirement under the Due ProcessClause.’’ Lavoie, supra, at 820, 106 S.Ct.1580 (emphasis added). States are, of


course, free to adopt broader recusal rulesthan the Constitution requires—and everyState has—but these developments are notcontinuously incorporated into the DueProcess Clause.

II

In departing from this clear line be-tween when recusal is constitutionally re-quired and when it is not, the majorityrepeatedly emphasizes the need for an‘‘objective’’ standard. Ante, at 2256, 2259,2261, 2262 – 2266. The majority’s analysisis ‘‘objective’’ in that it does not inquireinto Justice Benjamin’s motives or deci-sionmaking process. But the standard themajority articulates—‘‘probability ofbias’’—fails to provide clear, workableguidance for future cases. At the mostbasic level, it is unclear whether the newprobability of bias standard is somehowlimited to financial support in judicial elec-tions, or applies to judicial recusal ques-tions more generally.

But there are other fundamental ques-tions as well. With little help from themajority, courts will now have to deter-mine:

1. How much money is too much mon-ey? What level of contribution orexpenditure gives rise to a ‘‘proba-bility of bias’’?

2. How do we determine whether agiven expenditure is ‘‘disproportion-ate’’? Disproportionate to what ?

3. Are independent, non-coordinatedexpenditures treated the same as di-rect contributions to a candidate’scampaign? What about contribu-tions to independent outside groupssupporting a candidate?

4. Does it matter whether the litiganthas contributed to other candidatesor made large expenditures in con-nection with other elections?

5. Does the amount at issue in the casematter? What if this case were anemployment dispute with only$10,000 at stake? What if the plain-tiffs only sought non-monetary reliefsuch as an injunction or declaratoryjudgment?

6. Does the analysis change dependingon whether the judge whose disqual-ification is sought sits on a trialcourt, appeals court, or state su-preme court?

7. How long does the probability ofbias last? Does the probability ofbias diminish over time as the elec-tion recedes? Does it matter wheth-er the judge plans to run for reelec-tion?

8. What if the ‘‘disproportionately’’large expenditure is made by an in-dustry association, trade union, phy-sicians’ group, or the plaintiffs’ bar?Must the judge recuse in all casesthat affect the association’s inter-ests? Must the judge recuse in allcases in which a party or lawyer is amember of that group? Does itmatter how much the litigant con-tributed to the association?

9. What if the case involves a social orideological issue rather than a finan-cial one? Must a judge recuse fromcases involving, say, abortion rightsif he has received ‘‘disproportionate’’support from individuals who feelstrongly about either side of thatissue? If the supporter wants tohelp elect judges who are ‘‘tough oncrime,’’ must the judge recuse in allcriminal cases?

10. What if the candidate draws ‘‘dis-proportionate’’ support from a par-ticular racial, religious, ethnic, orother group, and the case involvesan issue of particular importance tothat group?


11. What if the supporter is not a partyto the pending or imminent case,but his interests will be affected bythe decision? Does the Court’sanalysis apply if the supporter‘‘chooses the judge’’ not in his case,but in someone else’s?

12. What if the case implicates a regu-latory issue that is of great impor-tance to the party making the ex-penditures, even though he has nodirect financial interest in the out-come (e.g., a facial challenge to anagency rulemaking or a suit seek-ing to limit an agency’s jurisdic-tion)?

13. Must the judge’s vote be outcomedeterminative in order for his non-recusal to constitute a due processviolation?

14. Does the due process analysis con-sider the underlying merits of thesuit? Does it matter whether thedecision is clearly right (or wrong)as a matter of state law?

15. What if a lower court decision infavor of the supporter is affirmedon the merits on appeal, by a panelwith no ‘‘debt of gratitude’’ to thesupporter? Does that ‘‘moot’’ thedue process claim?

16. What if the judge voted against thesupporter in many other cases?

17. What if the judge disagrees withthe supporter’s message or tactics?What if the judge expressly dis-claims the support of this person?

18. Should we assume that electedjudges feel a ‘‘debt of hostility’’ to-wards major opponents of theircandidacies? Must the judge re-cuse in cases involving individualsor groups who spent large amountsof money trying unsuccessfully todefeat him?

19. If there is independent review of ajudge’s recusal decision, e.g., by apanel of other judges, does thiscompletely foreclose a due processclaim?

20. Does a debt of gratitude forendorsements by newspapers, in-terest groups, politicians, or ce-lebrities also give rise to aconstitutionally unacceptableprobability of bias? How wouldwe measure whether such sup-port is disproportionate?

21. Does close personal friendship be-tween a judge and a party or law-yer now give rise to a probability ofbias?

22. Does it matter whether the cam-paign expenditures come from aparty or the party’s attorney? Iffrom a lawyer, must the judge re-cuse in every case involving thatattorney?

23. Does what is unconstitutional varyfrom State to State? What if par-ticular States have a history of ex-pensive judicial elections?

24. Under the majority’s ‘‘objective’’test, do we analyze the due processissue through the lens of a reason-able person, a reasonable lawyer,or a reasonable judge?

25. What role does causation play inthis analysis? The Court sendsconflicting signals on this point.The majority asserts that ‘‘[w]heth-er Blankenship’s campaign contri-butions were a necessary and suffi-cient cause of Benjamin’s victory isnot the proper inquiry.’’ Ante, at2264. But elsewhere in the opin-ion, the majority considers ‘‘the ap-parent effect such contribution hadon the outcome of the election,’’ante, at 2264, and whether the liti-gant has been able to ‘‘choos[e] the


judge in his own cause,’’ ante, at2265. If causation is a pertinentfactor, how do we know whetherthe contribution or expenditure hadany effect on the outcome of theelection? What if the judge won ina landslide? What if the judge wonprimarily because of his opponent’smissteps?

26. Is the due process analysis lessprobing for incumbent judges—who typically have a great advan-tage in elections—than for chal-lengers?

27. How final must the pending case bewith respect to the contributor’s in-terest? What if, for example, theonly issue on appeal is whether thecourt should certify a class of plain-tiffs? Is recusal required just as ifthe issue in the pending case wereultimate liability?

28. Which cases are implicated by thisdoctrine? Must the case be pend-ing at the time of the election?Reasonably likely to be brought?What about an important but unan-ticipated case filed shortly after theelection?

29. When do we impute a probability ofbias from one party to another?Does a contribution from a corpora-tion get imputed to its executives,and vice-versa? Does a contribu-tion or expenditure by one familymember get imputed to other fami-ly members?

30. What if the election is nonpartisan?What if the election is just a yes-or-no vote about whether to retain anincumbent?

31. What type of support is disqualify-ing? What if the supporter’s ex-penditures are used to fund voterregistration or get-out-the-vote ef-

forts rather than television adver-tisements?

32. Are contributions or expendituresin connection with a primary aggre-gated with those in the generalelection? What if the contributorsupported a different candidate inthe primary? Does that dilute thedebt of gratitude?

33. What procedures must be followedto challenge a state judge’s failureto recuse? May Caperton claimsonly be raised on direct review?Or may such claims also be broughtin federal district court under 42U.S.C. § 1983, which allows a per-son deprived of a federal right by astate official to sue for damages?If § 1983 claims are available, whoare the proper defendants? Thejudge? The whole court? Theclerk of court?

34. What about state-court cases thatare already closed? Can the losingparties in those cases now seek col-lateral relief in federal districtcourt under § 1983? What stat-utes of limitation should be appliedto such suits?

35. What is the proper remedy? Aftera successful Caperton motion, mustthe parties start from scratch be-fore the lower courts? Is any partof the lower court judgment re-tained?

36. Does a litigant waive his due pro-cess claim if he waits until afterdecision to raise it? Or would theclaim only be ripe after decision,when the judge’s actions or votesuggest a probability of bias?

37. Are the parties entitled to discov-ery with respect to the judge’s re-cusal decision?


38. If a judge erroneously fails to re-cuse, do we apply harmless-errorreview?

39. Does the judge get to respond tothe allegation that he is probablybiased, or is his reputation solely inthe hands of the parties to thecase?

40. What if the parties settle a Caper-ton claim as part of a broader set-tlement of the case? Does thatleave the judge with no way tosalvage his reputation?

These are only a few uncertainties thatquickly come to mind. Judges and liti-gants will surely encounter others whenthey are forced to, or wish to, apply themajority’s decision in different circum-stances. Today’s opinion requires stateand federal judges simultaneously to act aspolitical scientists (why did candidate Xwin the election?), economists (was the fi-nancial support disproportionate?), andpsychologists (is there likely to be a debtof gratitude?).

The Court’s inability to formulate a ‘‘ju-dicially discernible and manageable stan-dard’’ strongly counsels against the recog-nition of a novel constitutional right. SeeVieth v. Jubelirer, 541 U.S. 267, 306, 124S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurali-ty opinion) (holding political gerrymander-ing claims nonjusticiable based on the lackof workable standards); id., at 317, 124S.Ct. 1769 (KENNEDY, J., concurring injudgment) (‘‘The failings of the many pro-posed standards for measuring the burdena gerrymander imposes TTT make our in-tervention improper’’). The need to con-sider these and countless other questionshelps explain why the common law andthis Court’s constitutional jurisprudencehave never required disqualification onsuch vague grounds as ‘‘probability’’ or‘‘appearance’’ of bias.

III

A

To its credit, the Court seems to recog-nize that the inherently boundless natureof its new rule poses a problem. But themajority’s only answer is that the presentcase is an ‘‘extreme’’ one, so there is noneed to worry about other cases. Ante, at2265. The Court repeats this point overand over. See ante, at 2263 (‘‘this is anexceptional case’’); ante, at 2265 (‘‘Onthese extreme facts’’); ibid. (‘‘Our deci-sion today addresses an extraordinary sit-uation’’); ante, at 2265 (‘‘The facts nowbefore us are extreme by any measure’’);ante, at 2267 (Court’s rule will ‘‘be con-fined to rare instances’’).

But this is just so much whistling pastthe graveyard. Claims that have littlechance of success are nonetheless fre-quently filed. The success rate for certio-rari petitions before this Court is approxi-mately 1.1%, and yet the previous Termsome 8,241 were filed. Every one of the‘‘Caperton motions’’ or appeals or § 1983actions will claim that the judge is biased,or probably biased, bringing the judge andthe judicial system into disrepute. And allfuture litigants will assert that their case isreally the most extreme thus far.

Extreme cases often test the bounds ofestablished legal principles. There is acost to yielding to the desire to correct theextreme case, rather than adhering to thelegal principle. That cost has been dem-onstrated so often that it is captured in alegal aphorism: ‘‘Hard cases make badlaw.’’

Consider the cautionary tale of our deci-sions in United States v. Halper, 490 U.S.435, 109 S.Ct. 1892, 104 L.Ed.2d 487(1989), and Hudson v. United States, 522U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450(1997). Historically, we have held that theDouble Jeopardy Clause only applies to


criminal penalties, not civil ones. See, e.g.,Helvering v. Mitchell, 303 U.S. 391, 398–400, 58 S.Ct. 630, 82 L.Ed. 917 (1938).But in Halper, the Court held that a civilpenalty could violate the Clause if it were‘‘overwhelmingly disproportionate to thedamages [the defendant] has caused’’ andresulted in a ‘‘clear injustice.’’ 490 U.S., at446, 449, 109 S.Ct. 1892. We acknowl-edged that this inquiry would not be an‘‘exact pursuit,’’ but the Court assured liti-gants that it was only announcing ‘‘a rulefor the rare case, the case such as the onebefore us.’’ Id., at 449, 109 S.Ct. 1892; seealso id., at 453, 109 S.Ct. 1892 (KENNE-DY, J., concurring) (‘‘Today’s holding, Iwould stress, constitutes an objective rulethat is grounded in the nature of the sanc-tion and the facts of the particular case’’).

Just eight years later, we granted cer-tiorari in Hudson ‘‘because of concernsabout the wide variety of novel doublejeopardy claims spawned in the wake ofHalper.’’ 522 U.S., at 98, 118 S.Ct. 488;see also ibid., n. 4. The novel claim that wehad recognized in Halper turned out not tobe so ‘‘rare’’ after all, and the test weadopted in that case—‘‘overwhelminglydisproportionate’’—had ‘‘proved unwork-able.’’ Id., at 101–102, 118 S.Ct. 488 (in-ternal quotation marks omitted). We thusabandoned the Halper rule, ruing our ‘‘illconsidered’’ ‘‘ deviation from longstandingdouble jeopardy principles.’’ Id., at 101,118 S.Ct. 488.

The deja vu is enough to make oneswoon. Today, the majority again departsfrom a clear, longstanding constitutionalrule to accommodate an ‘‘extreme’’ caseinvolving ‘‘grossly disproportionate’’amounts of money. I believe we will cometo regret this decision as well, when courtsare forced to deal with a wide variety ofCaperton motions, each claiming the titleof ‘‘most extreme’’ or ‘‘most disproportion-ate.’’

B

And why is the Court so convinced thatthis is an extreme case? It is true thatDon Blankenship spent a large amount ofmoney in connection with this election.But this point cannot be emphasizedstrongly enough: Other than a $1,000 di-rect contribution from Blankenship, Jus-tice Benjamin and his campaign had nocontrol over how this money was spent.Campaigns go to great lengths to developprecise messages and strategies. An in-sensitive or ham-handed ad campaign byan independent third party might distortthe campaign’s message or cause a back-lash against the candidate, even thoughthe candidate was not responsible for theads. See Buckley v. Valeo, 424 U.S. 1, 47,96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (percuriam) (‘‘Unlike contributions, such inde-pendent expenditures may well provide lit-tle assistance to the candidate’s campaignand indeed may prove counterproductive’’);see also Brief for Conference of Chief Jus-tices as Amicus Curiae 27, n. 50 (citingexamples of judicial elections in which in-dependent expenditures backfired andhurt the candidate’s campaign). The ma-jority repeatedly characterizes Blanken-ship’s spending as ‘‘contributions’’ or ‘‘cam-paign contributions,’’ ante, at 2256, 2257 –2258, 2264 – 2266, 2266 – 2267, but it ismore accurate to refer to them as ‘‘inde-pendent expenditures.’’ Blankenship only‘‘contributed’’ $1,000 to the Benjamin cam-paign.

Moreover, Blankenship’s independentexpenditures do not appear ‘‘grossly dis-proportionate’’ compared to other such ex-penditures in this very election. ‘‘And forthe Sake of the Kids’’—an independentgroup that received approximately two-thirds of its funding from Blankenship—spent $3,623,500 in connection with theelection. App. 684a. But large indepen-dent expenditures were also made in sup-


port of Justice Benjamin’s opponent.‘‘Consumers for Justice’’—an independentgroup that received large contributionsfrom the plaintiffs’ bar—spent approxi-mately $2 million in this race. Id., at682a–683a, n. 41. And Blankenship hasmade large expenditures in connectionwith several previous West Virginia elec-tions, which undercuts any notion that hisinvolvement in this election was ‘‘intendedto influence the outcome’’ of particularpending litigation. Brief for Petitioners29.

It is also far from clear that Blanken-ship’s expenditures affected the outcome ofthis election. Justice Benjamin won by acomfortable 7–point margin (53.3% to46.7%). Many observers believed thatJustice Benjamin’s opponent doomed hiscandidacy by giving a well-publicizedspeech that made several curious allega-tions; this speech was described in thelocal media as ‘‘deeply disturbing’’ andworse. App. 679a, n. 38. Justice Benja-min’s opponent also refused to give inter-views or participate in debates. All butone of the major West Virginia newspa-pers endorsed Justice Benjamin. JusticeBenjamin just might have won because thevoters of West Virginia thought he wouldbe a better judge than his opponent. Un-like the majority, I cannot say with anydegree of certainty that Blankenship‘‘cho[se] the judge in his own cause.’’Ante, at 2265. I would give the voters ofWest Virginia more credit than that.

* * *

It is an old cliche, but sometimes thecure is worse than the disease. I am surethere are cases where a ‘‘probability ofbias’’ should lead the prudent judge to stepaside, but the judge fails to do so. Maybethis is one of them. But I believe thatopening the door to recusal claims underthe Due Process Clause, for an amorphous

‘‘probability of bias,’’ will itself bring ourjudicial system into undeserved disrepute,and diminish the confidence of the Ameri-can people in the fairness and integrity oftheir courts. I hope I am wrong.

I respectfully dissent.

Justice SCALIA, dissenting.

The principal purpose of this Court’sexercise of its certiorari jurisdiction is toclarify the law. See this Court’s Rule 10.As THE CHIEF JUSTICE’s dissentmakes painfully clear, the principal conse-quence of today’s decision is to create vastuncertainty with respect to a point of lawthat can be raised in all litigated cases in(at least) those 39 States that elect theirjudges. This course was urged upon us ongrounds that it would preserve the public’sconfidence in the judicial system. Brieffor Petitioners 16.

The decision will have the opposite ef-fect. What above all else is eroding publicconfidence in the Nation’s judicial systemis the perception that litigation is just agame, that the party with the most re-sourceful lawyer can play it to win, thatour seemingly interminable legal proceed-ings are wonderfully self-perpetuating butincapable of delivering real-world justice.The Court’s opinion will reinforce that per-ception, adding to the vast arsenal of law-yerly gambits what will come to be knownas the Caperton claim. The facts relevantto adjudicating it will have to be litigat-ed—and likewise the law governing it,which will be indeterminate for years tocome, if not forever. Many billable hourswill be spent in poring through volumes ofcampaign finance reports, and many morein contesting nonrecusal decisions throughevery available means.

A Talmudic maxim instructs with re-spect to the Scripture: ‘‘Turn it over, andturn it over, for all is therein.’’ The Baby-lonian Talmud, Tractate Aboth, Ch. V,

2275INDIANA STATE POLICE PENSION v. CHRYSLERCite as 129 S.Ct. 2275 (2009)

Mishnah 22 (I. Epstein ed.1935). Divinelyinspired text may contain the answers toall earthly questions, but the Due ProcessClause most assuredly does not. TheCourt today continues its quixotic quest toright all wrongs and repair all imperfec-tions through the Constitution. Alas, thequest cannot succeed—which is why somewrongs and imperfections have been callednonjusticiable. In the best of all possibleworlds, should judges sometimes recuseeven where the clear commands of ourprior due process law do not require it?Undoubtedly. The relevant question, how-ever, is whether we do more good thanharm by seeking to correct this imperfec-tion through expansion of our constitution-al mandate in a manner ungoverned byany discernable rule. The answer is obvi-ous.

,

1

INDIANA STATE POLICE PENSIONTRUST, et al., Applicants,

v.

CHRYSLER LLC, et al.No. 08A1096.

June 8, 2009.

ORDER

GINSBURG, Justice.

UPON CONSIDERATION of the appli-cation of counsel for the applicants, andthe responses filed thereto,

IT IS ORDERED that the orders of thisBankruptcy Court for the Southern Dis-trict of New York, case No. 09-50002, dat-ed May 31 and June 1, 2009, are stayed

pending further order of the undersignedor of the Court.

,

2

INDIANA STATE POLICE PENSIONTRUST, et al.

v.

CHRYSLER LLC et al.

Center for Auto Safety et al.

v.

Chrysler LLC et al.

Patricia Pascale

v.

Chrysler LLC et al.Nos. 08A1096, 08–1513 (08A1099),

08A1100.

June 9, 2009.

Background: Automobile manufacturerand its affiliated companies, each of whichhad filed jointly administered cases underChapter 11, moved for authority to selldebtors’ assets outside ordinary course ofbusiness and outside plan confirmationcontext, and objections were filed onground, inter alia, that proposed sale wasin nature of improper sub rosa plan. TheUnited States Bankruptcy Court, ArthurJ. Gonzalez, J., 405 B.R. 84, granted themotion. The United States Court of Ap-peals, 2009 WL 1532959, granted a stay,and 2009 WL 1532960, granted leave toappeal. The United States Supreme Court,Justice Ginsburg, ––– U.S. ––––, 129 S.Ct.2275, ––– L.Ed.2d –––– 2009 WL 1579492,granted temporary stay.

2252 129 supreme court reporter 129 supreme court reporter hugh m. caperton, ... constitutional law...

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