Supreme Court decision suggests a more 'muddled reality' than sensationalized reports suggest

Media coverage of Caperton v. A.T. Massey Coal Co. often focused on the sensational — the case inspired a John Grisham novel — but the actual facts suggest a more muddled reality.

Media accounts often incorrectly state that Don Blankenship, Massey’s CEO, contributed the bulk of the $3 million in question directly to West Virginia state justice Brent Benjamin’s campaign. However, Blankenship used his money to fund an independent advocacy group and to run ads against the incumbent justice on his own (his direct campaign contribution was only $1,000). Benjamin could not control the independent spending, and, as any campaign consultant knows, independent ads can backfire.



Benjamin won by more than a six point margin, he was endorsed by all but one major state newspaper and the losing incumbent justice made a damaging speech before the election. Additionally, businessmen on both sides of the “v.” in the case contributed money to groups active in the judicial race.

In Caperton the Court created a new “probability of bias” standard. Dissenting justices warned of a flurry of recusal motions soon to come — possibly inviting political gamesmanship to 39 states with judicial elections.

Chief Justice John Roberts raised no less than 40 questions that will now be used as grounds for recusal motions in the 39 states with judicial elections — opening up the judiciary to political gamesmanship and festering questions about what exactly the Court’s new “probability of bias” standard means. The Center for Competitive Politics asked similar questions in its friend-of-the-court brief in this case: How much money is too much money? Does the standard apply to associations like the plaintiff’s bar or the institutional press? Does the standard apply in reverse, creating a “debt of hostility” against those who advocated against a judge?

Thankfully, the Court emphasized the one-time nature of its ruling (it has protected First Amendment rights in judicial elections in Republican Party of Minnesota v. White), which probably means it’s the Bush v. Gore of campaign finance law. The ruling also resembles Jacobellis v. Ohio, the famous 1964 decision setting an obscenity standard: “I know it when I see it,” Justice Potter Stewart wrote.

State courts now face a period of confusion while 39 states determine what “it” is in potential judicial bias.

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