More than nine in 10 voters think that judges should step aside from cases when one of the litigants has spent substantial sums to get them elected. 1 And in Caperton v. A.T. Massey Coal Company, the U.S. Supreme Court ruled that recusal was constitutionally required when a West Virginia Supreme Court justice cast a deciding vote to overturn a $50 million verdict against Massey, after the company’s CEO spent more than $3 million to support the justice’s campaign. Those circumstances, the court found, presented a serious risk of actual bias in violation of the Due Process Clause. 2

Yet while nearly every state has some version of a rule calling for judges to recuse themselves when their impartiality might reasonably be questioned, few offer clear guidance about when campaign spending requires judges to step aside.

For example, while outside spending in judicial elections has skyrocketed in recent years, only six states have recusal rules addressing independent expenditures—creating uncertainty for judges and parties alike. 3 Most states also allow judges to decide their own recusal motions—creating obvious conflicts and discouraging litigants from filing motions in the first place.

Stronger recusal rules will not eliminate the threats to fair and impartial courts stemming from high-cost judicial elections—but they can address the most direct and egregious conflicts judges face.

Notes:

  1. Justice at Stake & The Brennan Center for Justice, Justice at Stake and Brennan Center National Poll, 10/22-10/24, 2013 (2013), available at https://www.brennancenter.org/sites/default/files/press-releases/JAS%20Brennan%20NPJE%20Poll%20Topline.pdf.
  2. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
  3. Alabama, Georgia, Iowa, Mississippi, Ohio, and Washington. Additionally, New Mexico, Oklahoma, Pennsylvania, Tennessee, and Utah mention independent expenditures in the commentary to their codes of judicial conduct.