Justice Roberts Has A Little List

the_mikado1The Supreme Court ruled yesterday in Caperton v. A.T. Massey Coal Company that the Due Process Clause of the United States Constitution is violated by the refusal of a judge to recuse herself when the disproportionate campaign contributions of a litigant on behalf of that judge create a serious, objective risk of actual bias. Rick Esenberg has posted on some of the issues raised by the majority opinion here. For me, the most interesting part of the case was actually the dissent by Justice John Roberts. In it, Justice Roberts objects to the uncertainty that federal judges will encounter as they attempt to apply this constitutional right in future cases with disparate fact patterns. In a bit of theatricality worthy of Gilbert & Sullivan, the Chief Justice’s dissent presents a list of 40 questions that the majority opinion leaves unanswered.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.

It was another Chief Justice, John Marshall, who famously asserted the traditional common law rule that governed the role of the Supreme Court in the administration of justice. In Marbury v. Madison, Justice Marshall wrote:

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

By demanding that the judicial remedy be clear and manageable before the Court should undertake to recognize the existence of a constitutional right, Chief Justice Roberts would transform judicial restraint into judicial timidity. For example, one could easily take the holding of the Supreme Court in Brown v. Board of Education – that the maintenance of segregated schools for blacks and whites violates the Equal Protection Clause – and generate 40 unanswered questions:

1. Is the proper remedy for segregation the forced busing of students to different schools?

2. Should busing plans be designed to achieve the integration of each individual school or is it sufficient that the school district as a whole be integrated?

3. Should busing plans incorporate districts without a history of discrimination if doing so will aid in the creation of a larger integrated educational system?

4. How long should forced busing plans be maintained before integrated school districts are allowed to naturally slide back towards segregation?

5. Can school districts without a history of intentional segregation choose to voluntarily impose busing plans that create integrated schools?

I could go on and on, as there is a two decade history of busing litigation in federal courts that worked through these and countless other questions in the wake of the Brown decision.

These cases constitute the far end of the spectrum in terms of federal judges leaping into the great unknown in order to craft a remedy for a newly created constitutional right. Yet Justice Roberts seems to suggest that the lesson to take away from this experience is that the Supreme Court should not have overturned Plessey v. Ferguson and ordered the desegregation of public schools. He suggests that if the Justices cannot anticipate all of the issues raised by an attempt to remedy the violation of a constitutional right, perhaps the right shouldn’t exist at all. I prefer Justice Marshall’s classic definition of the judiciary. If there is a violation of a legal right, it is the obligation of the federal courts to find a remedy.

This Post Has 7 Comments

  1. Lukas Steiner

    I agree with you that the most interesting part of the Court’s opinion was C.J. Roberts’ dissent. The line following his list of 40 questions, left unanswered by the majority opinion, made me laugh out loud.
    I take issue, however, with your suggestion that the dissenters refused to embrace the majority’s position primariliy because the appearance/probability of bias test the majority laid out was too imprecise. While that aspect of the majority opinion is troublesome with respect to the bland landslide-of-litigation rationale; I think that C.J. Roberts’ dissent is grounded on the desire not to trivialize the Due Process Clause. I think that the dissenting opinion, as a whole, stands more firmly on the grounds noted in section III A, rather than on section II. Indeed, it seems to me, that the lesson to be taken from this is that some problems with our legal system simply do not rise to Constitutional proportions, and are better left to resolution by state legislatures and codes of judicial ethics.

  2. Ed Fallone

    I would much rather have the debate on the grounds that you suggest, because I agree that it raises the more serious question. I tend to see this as a “Baker v. Carr moment” when the political process is broken in the context of judicial elections and the Court needs to break the impasse. But of course I felt the same way about the political gerrymandering cases, and the risk is that if the Court does wade into all of these debates there is a possibility of trivializing the Due Process Clause.

    The unusual nature of Justice Robert’s “list” was designed to draw attention to his other argument, and it succeeded in its objective. While it is important to have the debate you identify, I am more concerned about where Justice Roberts might pursue this second, lesser argument in future cases.

  3. Sean Samis

    I was just thinking of the Crawford v. Washington decision penned by J. Scalia who joined the dissent in Caperton.

    Crawford might be a good decision but it made a mess of our Evidence class; there are many questions it leaves explicitly unanswered. Many still linger. Obviously that did not bother Scalia then, why it would reasonably matter now is not obvious.

  4. Mike McChrystal

    Outlandish events sometimes provoke a new constitutional perspective. The constitutionalization of defamation law in New York Times v. Sullivan is an example that comes to mind. Sullivan involved an outlandish event—a large damage award in state court in favor of a local public official for the newspaper’s criticism of government agencies in the context of civil rights issues—and while it is difficult to capture quickly how outlandish the facts really were, Anthony Lewis has done so at length in his book, Make No Law: The Sullivan Case and the First Amendment. As a case that provoked a new constitutional perspective on state defamation law, it was difficult in Sullivan to discern up front the scope of the constitutional standard announced by the Court. It took about 20 years for the constitutional standards governing defamation to come to relative rest.

    Caperton, in my view, similarly involved an outrageous event in that an elected state court judge failed to recuse himself in a case in which a principal recently had spent $3 million to help newly elect the judge.

    Chief Justice Roberts is right that the scope of the constitutional standard in Caperton is difficult to discern up front. But that is because the judge’s conduct was so outrageous in failing to recuse himself that most subsequent cases surely will be less compelling.

    Ed Fallone’s examples of Brown v. Board of Education and Baker v. Carr are very instructive as to how new constitutional perspectives can take time (and subsequent cases) to play out. But Brown and Baker involved entrenched and widespread behavior that was newly found to be offensive to constitutional principles. Caperton and Sullivan are different in that they involved over-the-top events that are well beyond the historic norms and are offensive to timeless constitutional values. With due respect to the Chief Justice, it is no more novel constitutionally to conclude that due process prevents judges from sitting in cases involving principals whose recent $3 million in expenditures helped elect the judge (Caperton) than it was to conclude that freedom of speech prevents the state from punishing critics of official conduct who have not been reckless or worse with the facts (Sullivan). What is novel, in each case, is that someone tried to get away with it.

    As to the likelihood of satellite litigation over recusal that Chief Justice Roberts is right to fear, perhaps he could assert his leadership to seek answers in a regulatory way as to the standards that ought to apply. A benefit might be to reduce the wait for relative clarity from the two decades it took after the Sullivan case.

  5. Tom Worsfold

    Professor Fallone,

    I think you miss an important distinction between the Chief Justice’s “list” and unforeseen “issues raised by an attempt to remedy the violation of a constitutional right.”

    In your example of Brown v. Board, there was one clear standard that violated the constitution: Separate but equal, which was in place uniformly across much of the country. It was remedies that raised further constitutional questions.

    With Caperton, it is the uncertainty of the Sandard that Roberts draws attention to. In each of the 40 questions, it is unclear whether that scenario constitutes a violation. The remedy is clear: disqualification.

  6. Richard M. Esenberg

    I had something of the same reaction to the Roberts list, but I think there is a kernel of a point suggested by it. It does seem to me that the “inability to formulate a ‘judicially discernible and manageable standard’” should, at times, counsel “against the recognition of a novel constitutional right.” I think this is so, not when it is hard to articulate a standard that does not answer all questions, but when it is impossible to discern a strong guiding principle from the constitutional text or its history. This is, it seems to me, one of the reasons why the 9th Amendment has remained moribund and one of the problems with a constitutional right to privacy. In both cases, it is difficult to find a guiding principle that derives from or places any real limit on the judicial will. If you believe that judges ought to base their decision in some source of authority other than their own conceptions of good policy (even as they have to make contestable judgments about what that is), this is a problem.

    Whether Caperton is that type of case is, of course, subject to debate. It doesn’t seem unreasonable to think that due process requires a judge who is not bought and paid for. Thus the due process clause has been used to mandate recusal of judges with a pecuniary interest in a matter.

    There is, I suppose a risk of trivializing the due process clause when it is extended to manage more indirect influences on a judge. I’d feel better about Caperton if the majority had more clearly limited the new right to the facts of this case. If it had, for example, made clear that it was only saying that when a particular person who is a party to a particular case has an overwhelming influence on the selection process, there is a due process claim. That doesn’t resolve all of the problems with the decision but at least would limit the potential for future mischief.

  7. Ed Fallone

    Tom raises a valid response to my initial post, and one that I anticipated. I do not know whether or not I am missing Justice Robert’s distinction, but I will happily confess that I am baffled by his approach towards the definition of constitutional rights. In my view, the Due Process Clause creates a right against having a biased judge. Simple and clear. There may be evidentiary rules that can be adopted, or legal presumptions, that allow for the efficient enforcement of this right. For example, judges might be presumed to be free from bias and a litigant might have to offer “clear and convincing evidence” of facts which render the presumption unwarranted. There may also be limits placed on the remedy for a violation of the right. The “harmless error” doctrine, for example, recognizes that a new trial is not required every time the Fourth Amendment has been violated. These are the sorts of things that get worked out over time. It is messy, and sometimes the Court takes a wrong turn and has to backtrack, but that is the common law. My difficulty with Justice Roberts is that I do not understand what any of these later questions have to do with the existence of the constitutional right in the first place. I suppose if I were to interpret a statute passed by a legislature then I would avoid an interpretation that creates more questions than it answers. But the Constitution is not a statute. It seems to me that the Chief Justice is treating it like one.

    Rick Esenberg’s comment provides an interesting alternative avenue for limiting the recognition of new due process rights. It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

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