by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Most of the coverage thus far of this morning’s argument in Caperton v. Massey Coal, the case raising the question of whether an elected judge must recuse himself from a case involving his largest campaign donor, has focused on the Supreme Court Justices’ struggle to find a limiting principle for the due process argument presented by former Bush Solicitor General Ted Olson on behalf of Hugh Caperton. Lyle Denniston of SCOTUSblog observed:

Tugged between a sense that a constitutional ruling on judges’ duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios, the Supreme Court set itself a difficult task as it moves toward a ruling in Caperton, et al., v. A.T. Massey Coal Co., et al. (08-22), heard Tuesday during an intense hour of exchanges with two harried advocates.

The Justices were certainly concerned with the consequences of a decision holding that Justice Brent Benjamin’s refusal to recuse himself violated the Due Process Clause of the Fourteenth Amendment: Justice Alito kept trying to get Olson to say what situations his due process standard wouldn’t apply to (for example, if a judge’s supporter gave significant amounts of money based on concerns for social issues, as opposed to the alleged concern Massey’s CEO had in this case for business-friendly rulings); Chief Justice Roberts was concerned that a “reasonable observer” standard—a standard that asked whether an objective observer with all the facts would consider a judge to have a probability of bias in a certain case—could implicate judges who have social relationships with lawyers or parties who appear before them; and Justice Scalia clearly thought that even calling Olson’s position a “standard” was too high praise, scoffing at the “probability of bias” standard as “wonderfully ratchetable.” (Justice Scalia, of course, is well known for his own refusal to recuse himself in a case involving his duck hunting companion, then-Vice President Dick Cheney.)

But a deeper issue that appeared to be splitting the Justices is what, precisely, the Due Process Clause is meant to protect. Counsel for Massey Coal, Andrew Frey, stated at one point in the argument that “the Due Process Clause does not exist to protect the integrity or reputation of the State judicial systems.” Accordingly, Frey argued that an appearance of bias, or a probability or likelihood of bias, is not a constitutional concern.

Justice Stevens took this point on forcefully, arguing that “the community’s confidence” in the fairness of our courts is, in fact, part of the due process of law that the Fourteenth Amendment intended to secure.Justices Souter and Breyer both followed this line of reasoning to point out that there must be circumstances where state systems are sufficiently broken that the Constitution requires the Court to draw a constitutional line to protect the proper operation of our states’ judicial systems.

This division made for an exciting and energetic clash of constitutional principles among the Justices, with Chief Justice Roberts at one point interrupting an exchange between Justices Stevens and Scalia to note that Mr. Frey might want to get an answer in. But the question over which these jurists are divided is more than just interesting. The framers of the Fourteenth Amendment would surely be surprised to hear that the due process they secured in the text of that Amendment did not protect the integrity of the state judiciary.

Through the Joint Committee on Reconstruction, the drafters of the Due Process Clause gathered extensive evidence on the failures of the state courts to provide equal justice for all and these failures were discussed in detail in Congress. By writing the Fourteenth Amendment to prohibit any state from depriving “any person of life, liberty or property without due process of law,” our Reconstruction Framers sought to ensure that any person—rich or poor, black or white, Northerner or Southerner—could walk through the courthouse doors in any state and expect and get a fair hearing before an impartial judge.

The Supreme Court is unquestionably left with the difficult task of crafting a decision that will cover the extreme cases like the one it considered today, without unduly sweeping in other circumstances of alleged judicial bias that do not rise to the level of a constitutional violation. Standards that rely upon probability or likelihood are not as easily applied as bright-line rules, which caused Justice Scalia much consternation during this morning’s argument. But one thing should be clear as the Justices head into conference: the text and history of the Fourteenth Amendment require vigorous protection of the integrity of our state courts so that equal justice for all can be a promise kept, not merely a slogan etched above the doors to the Supreme Court.