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How the Supreme Court Chooses

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Carl Bernofsky
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In the summer of 2009, the U.S. Supreme Court will consider the case of Caperton v. Massey Coal Co. and decide whether a state supreme court justice should recuse himself from a case in which one of the parties contributed heavily to his election campaign.

This case focuses on the disqualification of West Virginia Supreme Court Justice Brent D. Benjamin, who was elected to his seat with the aid of more than $3 million in campaign contributions from the CEO of Massey Energy, the parent company of Massey Coal Co. Justice Benjamin, who refused to disqualify himself from the case, subsequently cast the pivotal vote in a 3-to-2 majority to dismiss a $50 million verdict against Massey, claiming that his judgment was based solely on the merits.

Judges have ultimate discretion over whether to disqualify themselves when there is an apparent conflict of interest, and they often rule in cases that involve a party who has helped to finance his or her election. Thus, one may question the motivation of the high court in selecting this particular case. After all, only a small fraction of cases coming before the Supreme Court are selected each year for review, and in this case an outcome that favors the sanctity of judicial discretion is virtually assured.

The answer to the above question appears to lie in the political advantage that can be derived from the publicity generated by the facts of this particular case, in which the extent of the campaign contributions was extraordinary.

Led by the American Bar Association, the legal establishment has long been working to undermine public confidence in the democratic process by which judges are elected, and it often seizes upon outrageous abuses of judicial independence, such as that represented by the Caperton case, to make its case for appointing judges.

The legal establishment's latest achievement in the campaign to select its own for judgeships was the successful lobbying of the U.S. Supreme Court by means of Friends of the Court briefs that implored the justices to hear the Caperton case.

In large measure, the U.S. Supreme Court appears to have accepted the Caperton case to help publicize the influence of campaign contributions on judicial outcome. Nevertheless, the high court is unlikely to remand the case back to the lower court to be reheard by another judge who did not have such an apparent conflict of interest.

Invoking authority that is nowhere specified in the Constitution, U.S. judges have granted themselves nearly unfettered independence, including the discretion to disqualify themselves. They are not likely to take any action that would curtail this self-conferred power. Justice Benjamin did not engage in an activity that differs in principle from the conduct of countless judges who have taken campaign contributions from parties who later appeared before them as litigants. Only the degree of the apparent conflict of interest differentiates Benjamin from the others, and the high court will likely find it impossible to define limitations to a principle that it basically supports.

The setting of judicial limitations is the constitutional responsibility of the Legislative Branch, which thus far has been reluctant to impose (or enforce) restrictions on the Judicial Branch. One can speculate that Congress has been derelict in this duty because many of its members are connected with bar associations.

The remedy to unbridled judicial power and its inevitable abuses is to hold judges accountable for improper and unlawful acts through mechanisms that are independent of the judiciary. The Constitution empowers Congress to regulate the courts, but Congress has shown itself to be an unwilling taskmaster and has permitted the judiciary to usurp sufficient power to keep the scales of justice from ever achieving a proper balance. This could be remedied, for example, by means of an independent inspector general and a grand jury system that would review cases of illegal judicial conduct.

Calls from citizens for greater accountability have been treated with disdain by the judiciary which resists any change that would curtail the nearly unlimited power that judges wield over litigating parties. Distress over arbitrary abuses of judicial authority has inevitably led to public reaction intent on restoring the balance of power to the people, where it rightfully belongs. However, attempts at reform have gained and then lost momentum as they were opposed by bar associations and business interests, misrepresented in the press, and suppressed through police action. The powerful bar associations and their allies fear meaningful judicial reform and stand ready to mobilize considerable resources to promote their agenda and marginalize opponents. Clearly, those intent on reform have formidable barriers to overcome.

Brian Ross Interviews Justice Larry Starcher About the Influence
of Campaign Contributions on Judicial Outcomes

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Carl Bernofsky, Ph.D., is a former professor of biochemistry at Tulane University and Mayo Graduate School of Medicine. He is the author or co-author of numerous scientific publications and was the recipient of major awards from national (more...)

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