folo

The argument transcript for the Caperton v. A.T. Massey Coal Co. case is online and available. The case (as Lotus has noted) is about whether due process requires judicial recusal for less than actual proved bias– whether appearance or probability or even possibility of bias is enough.

The transcript is an interesting read. One thing that is clear is that Ted Olson, arguing for Caperton (for recusal) fences off examples that would cover what has gone on in Mississippi– he would not call for recusal for large trade association financed participation in the election (I take that to mean the money from the Chamber of Commerce), or where the plaintiffs and defense bar go at it with large contributions. Given that, it’s hard to see how this case isn’t nearly a “one-off” thing. Andrew Frey, arguing for Massey, hints at that problem with the case, although he doesn’t do so very clearly (in fact, he doesn’t do very much with clarity in his argument). Some interesting tidbits:

• Olson’s second sentence– that a fair trial “means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal”– provoked Justice Scalia to shoot back with “Who says? Have we ever held that?”
• Frey: “We are saying that the Due Process Clause does not exist to protect the integrity or reputation of the State judicial systems.” (About which I thought “Then what’s a Due Process Clause for, exactly?).
• Frey argued that in no case would an appearance of impropriety justify due process recusal– only actual bias.

Kennedy likes the appearance-of-impropriety standard. Scalia strongly dislikes it. Souter states he likes a probability-of-bias standard. Ginsburg suggests they are close to synonyms.

Frey consistently failed to respond to questions (one of his most annoying habits is to agree or disagree with a suggestion but then fail to explain anything about why he disagreed or agreed, as if his personal opinion mattered to the justices) and had a real tendency to wander off into the high weeds.

Mr. Frey: Appearance is addressed to a different thing. It’s addressed to the reputation of the judicial system, which is not, I think, the function of the Due Process Clause to Address.

Justice Stevens: Why not?

Mr. Frey: Because I think the Due Process Clause is concerned with fairness of the–

Justice Stevens: You don’t think the community’s confidence in the way judges behave is an important part of due process?

Mr. Frey: No, I think it’s– it may be a systemically important value. But I think as long as the judge is impartial in the — in the case at hand, I don’t think there’s a problem.

Justice Souter: But–

Justice Kennedy: But our whole system is designed to ensure confidence in our judgments.

Mr. Frey: Well, I don’t– I think this is a side point.

Justice Kennedy: And it seems– it seems to me litigants have an entitlement to that under the Due Process Clause.

Mr. Frey: Well, I don’t think so, but I don’t think it– I don’t think it really essentially matters. We’re– we’re dealing with a semantical quibble here, where the real question is, is possibility of bias… is that the constitutional basis for disqualifying a judge?

Justice Souter asked Frey to explain why a debt of gratitude would not support recusal, and he went round and round (talking about Blackstone and Coke), until Justice Ginsburg suggested this was not an abstract point. Finally, Justice Scalia said (to laughter): “Are you going to finally get to discussing the debt of gratitude point?” When Frey said yes, Justice Scalia said, “I’ve been waiting and waiting.”

Justice Breyer came up with an interesting example– that due process doesn’t allow the court to manacle a defendant in the courtroom even though the jury may not be affected– the possibility of the effect is enough.

After Frey went round and round some more, Justice Kennedy said: “And then debt of gratitude– we keep asking but your time is running out, have you said what you need to say on debt of gratitude?” Justice Scalia: “I’m really anxious to hear what you have to say on debt of gratitude.”

The SCOTUS blog’s gloss on the argument is good and to the point, noting that the problem is finding a limiting principle to support the decision, and it seems clear that Justice Kennedy is the swing vote, expressing more sympathy for the Capterton side. Justice Scalia and to a lesser extent (lesser in the sense of not talking as much) Justice Roberts expressed hostility to the Capterton side, with Justice Alito speaking only once and Justice Thomas not at all, as is usual.

If you want to read everything imaginable about this case, the SCOTUS blog’s Supreme Court wiki has lower court opinions, cert petition, briefs, and the whole nine yards. My old con law professor thought this amicus brief was a particularly good one; it emphasizes the problem with finding a limiting principle (or for that matter, any principle) to support a ruling for Caperton.