by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Chief Justice Roberts’s dissent from yesterday’s ruling in Caperton v. A.T. Massey Coal Co. (discussed here), joined by Justices Alito, Scalia, and Thomas, trots out the legal aphorism that “hard cases make bad law” in criticizing Justice Kennedy’s majority opinion holding that a West Virginia judge was disqualified from hearing a high-stakes case involving a major campaign contributor.

What Roberts misses, however, is that it is not just the extreme facts of Caperton that are driving the majority’s decision. Instead, the Court reached its decision after grappling with relevant precedent and considering the Constitution’s textual guarantee of due process of law, which neither Chief Justice Roberts—despite his professed fidelity to precedent—nor Justice Scalia—despite his professed fidelity to constitutional text—face up to in their dissents.

In considering Chief Justice Roberts’s dissent, it is useful to recall his now-famous statement from his confirmation hearings:
Judges are like umpires…. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
Given this statement, it is surprising that Chief Justice Roberts never once attempts to distinguish a key precedent on which Justice Kennedy’s Caperton opinion relies: Ward v. Monroeville. The 1972 Monroeville case involved the mayor of Monroeville, who presided over a court that could assess fines as punishment; these fines went to the town’s general fisc, over which the mayor had responsibility. The Supreme Court found that this arrangement raised a concern that the fairness of the Monroeville tribunal was compromised by the financial incentives it created; as the Monroeville Court explained, the mayor’s “executive responsibilities for the Village finances may make him partisan to maintain the high level of contribution [to those finances] from the mayor’s court.”

The Monroeville case is an important development in the Supreme Court’s precedent because it elaborated on the common-law prohibition that judges could not hear cases in which they had a direct pecuniary interest. Monroeville held that due process could require recusal even in cases where the judge did not directly receive money by ruling a certain way, if there was nonetheless a financial incentive that could tempt a judge to disregard the neutrality our Constitution requires. The Court reiterated this principle in another case that Term, Gibson v. Berryhill, where the Court held that recusal could be required even where the financial stake was not as direct or positive as a judge receiving additional salary for ruling a certain way.

Yet in his dissent, Chief Justice Roberts refuses to “operate within [this] system of precedent,” as he suggested a judge should during his confirmation hearings. Instead, he never once acknowledges Monroeville, asserting that precedent establishes only that a judge may not preside over a case in which he has a “direct, personal, substantial pecuniary interest.”

But following precedent surely can’t mean following only those precedents you like and pretending the others don’t exist. Restricting yourself to calling balls and strikes doesn’t mean very much if you set the strike zone.

Constitutional text and history don’t fare much better in Justice Scalia’s dissent. Scalia often claims to be bound in his constitutional jurisprudence by text and tradition. Apparently, such textual dictates are to be followed only when they lead to bright-line rules: Scalia’s dissent opposes the majority’s decision in large part because the “probability of bias” standard articulated by the majority will require litigation to apply it to other fact patterns and spur “[m]any billable hours.” Scalia never wrestles with what the Constitution’s guarantee of due process means in the Caperton case by presenting an alternative constitutional narrative. Instead, in his three-paragraph dissent, he throws up his hands at the majority’ “quixotic quest” to protect constitutional rights.

Our Constitution deserves better. Fortunately, Justice Kennedy’s majority was not afraid to break a sweat in the service of fundamental constitutional rights. The Court acknowledged that the “probability of bias” standard can’t be “defined with precision” for all circumstances, but due process nonetheless requires the Court in certain cases to intervene and formulate objective standards “to protect the parties’ basic right to a fair trial in a fair tribunal.” In other words, sometimes a protecting constitutional rights requires reaching a result other than a per se rule and might even leave open some questions for future litigation.

It is not too much to ask our judges to canvass precedent and apply it to the facts at hand, and we shouldn’t abandon our Constitution because it may require a little elbow grease every now and then to apply it properly. The Caperton majority got it right—not just because the case presented “extreme facts,” but because it was the right decision based on a rigorous application of the law.