by Doug Kendall and Elizabeth Wydra

Today, Constitutional Accountability Center (CAC) filed a Supreme Court brief in Caperton v. A. T. Massey Coal Company on behalf of CAC and 27 other national, state, and local organizations that are committed to preserving judicial independence and integrity. As discussed previously on Text & History, in Caperton, the Court will address whether the 14th Amendment’s Due Process Clause requires a judge to recuse himself from a case involving a litigant who has made substantial contributions to the judge’s state election campaign. CAC’s brief, on behalf of clients including Justice at Stake, Appleseed, Common Cause and the American Judicature Society, discusses the importance of judicial independence to the framers of the 14th Amendment and explains how the Court’s ruling on the constitutional question could further, or impede, ongoing state judicial selection reform efforts.

The facts of Caperton vividly illustrate the problem with modern judicial elections. Don Blankenship, chairman, CEO, and president of A.T. Massey Coal Co., spent $3 million supporting Justice Brent Benjamin’s campaign for a seat on the West Virginia Supreme Court of Appeals – more than 60% of the total amount spent in support of Justice Benjamin’s successful candidacy. At the time of Benjamin’s election, Massey was preparing an appeal of a $50 million fraud verdict against the company to Benjamin’s court. After winning a seat on that court, Benjamin refused to recuse himself from Massey’s appeal, instead casting the tie-breaking vote in Massey’s favor.

CAC’s brief explains why this violates due process, not just under the Court’s jurisprudence, but also in light of the history of the Due Process Clause. One of CAC’s animating principles is that the history of the Civil War Amendments (including the 14th) is underappreciated in modern constitutional debates. This case illustrates this problem — our brief provides the first extended discussion of this history in the case so far — and our brief begins to rectify it. We explain that securing impartial justice was of particular concern to the drafters of the 14th Amendment’s Due Process Clause, who acted against the backdrop of widespread maladministration of justice in the South, whereby neither freed slaves nor Unionists could be sure of due process in the courts. The drafters of the 14th Amendment were also keenly aware of the particular injustices wrought by the Fugitive Slave Act in the North. Under the federal Fugitive Slave Act of 1850, the commissioner who decided whether the person brought before him was a fugitive slave received $10 for returning a purported slave, but only $5 for declaring him free. The Reconstruction Framers wrote the Due Process Clause to secure justice for all and guard against justice for sale. Applied to the facts of this case, the history of the 14th Amendment points strongly to a ruling that preserves the appearance and reality of equal justice by setting an outer limit on how much litigants can spend to get their favored judges elected without triggering constitutionally-required recusal.

Our brief also discusses the intersection of constitutional law and policy that will be the focus of much of the debate in this case. Many of the organizations joining CAC on the Caperton brief have documented the serious problems raised by modern judicial elections and suggested ways to reform judicial selection. As we explain in our brief, a ruling by the Court for Caperton will push forward ongoing state reform efforts, which will work within the contours of the Court’s constitutional ruling to find solutions to the questions of “wise policy” raised by the serious threats to judicial impartiality posed by judicial campaigns and elections. On the other hand, if the Court does not find that the egregious facts of this case rise to the level of a due process violation, state reform efforts will be weakened by the Court’s acceptance of the perceived and actual threats to judicial impartiality posed by high levels of campaign contributions to judicial candidates. While the Court’s constitutional ruling need not cross the line into the realm of policymaking, it will inevitably influence the momentum—and perhaps even the ultimate success—of judicial selection reform.

Constitutional Accountability Center was established in June 2008 as a think tank, law firm and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. CAC’s predecessor organization, Community Rights Counsel, documented judicial ethics violations involving stock conflicts and judicial junkets, and won reforms that prevent these violations. This brief thus illustrates the organizational continuity (in our focus on judicial accountability) and change (in our broader focus on topics including the history of the Civil War Amendments) in the evolution from Community Rights Counsel to Constitutional Accountability Center.