by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center (CAC)

Briefing is almost finished in the Supreme Court case Caperton v. A.T. Massey (08-22), with only the reply brief still due on February 24. In the round of briefs just filed in support of the Massey Coal company, Alabama’s Attorney General—joined by the AGs of Colorado, Delaware, Florida, Louisiana, Michigan, and Utah—argues that Caperton’s request to have the Supreme Court step in and declare Justice Benjamin’s failure to recuse himself a violation of the Fourteenth Amendment’s Due Process Clause “contradicts vital principles of federalism.”

This brief, and other arguments essentially telling the Supreme Court not to stick its federal nose in the states’ business, suggest that there is something “intrusive” or improper about a federal court declaring a state court procedure unconstitutional. Just so everyone is on the same page about what precisely federalism means under our Constitution, it does not mean that states can do whatever they want with respect to wholly state systems (such as state courts). Perhaps that’s what our federalism used to mean, but that view lost in the Civil War and was written out of the Constitution in the Reconstruction Amendments. In its place, the Fourteenth Amendment created a system in which all persons are guaranteed certain rights—including the protections of due process—that the states are required to respect, even in the administration of state policies and programs.

Indeed, the framers of the Fourteenth Amendment were particularly concerned with state courts, and conducted fact-finding on the injustices perpetrated in southern state judicial systems. They heard reports that, in the South, both newly freed slaves and white Unionists “can get no justice in the courts, and they have no protection for life, liberty or property.” Cong. Globe, 39th Cong., 2d Sess. 160 (1866) (remarks of Sen. Trumbull). To make sure that all people enjoyed basic, fundamental rights, no matter in which state they found themselves, the Fourteenth Amendment provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Respecting due process rights isn’t optional for states, nor is it subordinate to principles of federalism. Instead, the Fourteenth Amendment radically changed our federalist system by determining which principles of federalism survived the Civil War. A limited federal government with room and respect for state innovation and traditional police powers: yes. Leaving protection of substantive, fundamental rights to the whims of the states: no.

This has been settled law with respect to state courts since 1880, when the Supreme Court first ruled that state judicial systems don’t have free rein to violate constitutional rights. As the Court stated in Ex Parte Virginia, “a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent.

Accordingly, CAC argued in our brief in Caperton v. Massey that the Supreme Court should step in to declare a due process floor—which surely Justice Benjamin sank below—for judicial recusal in cases involving parties who have donated substantial sums to a judge’s election campaign. Then, with this floor in place, state reform efforts can take over the job of reforming and administering state judicial systems and elections in the manner each state prefers. One of the blessings of our federalist system is the diversity of policy created by independent states. But across these innovative policies, certain constitutional rights must remain standard and the same. Having an unbiased judge hear your case is precisely one of those rights.

Stay tuned to Text & History for continuing commentary on Caperton. Oral argument in this case is scheduled for Tuesday, March 3, at 10am.