At her confirmation hearings this past week, Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise. Barrett herself almost certainly does not know whether recusal is required and will not know until she is actually confronted with the question.
But as Barrett must already understand, her decision was made exponentially more difficult by Caperton v. A.T. Massey Coal Co., an inartful and mischievous 5-to-4 case decided more than a decade ago by the court she will soon join. The ruling would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.
Caperton involved a litigant who spent $3 million to help elect a West Virginia Supreme Court of Appeals justice, who then voted to reverse a $50 million damage award against his benefactor. The U.S. Supreme Court found that the judge should have recused himself. Writing for the majority, Justice Anthony M. Kennedy said that recusal may be constitutionally required even where a judge is not actually biased, if there is a “serious risk of actual bias.”
Based on its appraisal of the “psychological tendencies and human weakness” of all of us, the majority concluded that the campaign spending had “significant[ly] and disproportionate[ly]” influenced the judge’s election while the case was pending or imminent, resulting in a perceived serious risk that the judge was biased in favor of his contributor. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties’ consent — a man chooses the judge in his own cause,” the court said.
The dissenters warned that the majority would come to regret its new test. “At the most basic level,” wrote Chief Justice John G. Roberts Jr., “it is unclear whether the [majority’s] new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” Justice Antonin Scalia, while criticizing the majority for constitutionalizing the judge’s recusal decision “in a manner ungoverned by any discernable rule,” wrote that “in the best of all possible worlds, [judges should] sometimes recuse [themselves] even where the clear commands” of the Constitution don’t require it.
The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether the judge recognized it.
The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.
Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.
But while Caperton would seem to apply to Barrett’s decision with proverbial vengeance, only the Supreme Court knows whether this precedent applies so as to require her recusal from the 2020 presidential election cases. And only Barrett will know whether, in Scalia’s words, even if Caperton may not require her recusal, it counsels that recusal.
The art of judging is to divine from extant law and, when necessary, to fashion a principled rule of law that is sufficiently broad to decide the case before the court but sufficiently narrow that the rule will not decide cases for which a different rule should apply. The art is practiced by many but accomplished by few. One would think that the Supreme Court surely must have perfected this art by now, but, truth be known, it often eludes even our highest court — as it did in Caperton.
Unfortunately, inartful Supreme Court decisions are no less the law of the land than artful ones. Now Barrett, the Supreme Court and the country may have to reap the consequences.