Scalia's Caperton Dissent - A Message to Sotomayor and the Judiciary Committee?

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Today the Supreme Court handed down its decision in Caperton v. Massey Coal Co. (opinions here), a rather sensational case involving a recusal issue in the West Virginia Supreme Court of Appeals. As the story goes, Massey suffered a $50 million judgment in the trial court and appealed to the state Supreme Court (W. Va. doesn't have an intermediary appellate court). While the appeal was pending, there was a judicial election, and Massey bankrolled one of the candidates -- Brent Benjamin -- attempting to unseat a sitting justice. Benjamin won, and refused to recuse himself from the Massey appeal. Massey ended up winning by a 3-2 vote. The detailed facts, in all their sliminess, are set forth in Justice Kennedy's opinion for the majority.

The U.S. Supreme Court, splitting into the usual camps, held that Benjamin's refusal to recuse himself violated the Due Process Clause. The case is interesting in terms of its implications regarding recusals and Due Process jurisprudence, and will certainly be seized upon in the debate over judicial elections. But Justice Scalia's brief dissent (Roberts took the laboring oar for the minority) deals more broadly with his vision of the Supreme Court's role, and has particular relevance in light of the looming confirmation hearings for Sonia Sotomayor.

Right out of the gate Scalia opens with this: "The principal purpose of this Court's exercise of its certiorari jurisdiction is to clarify the law." (emphasis added.) This is an even more extreme view of judicial minimalism than Justice Roberts' fabled "umpire" metaphor. The highest court in the land operates on the margins, "clarifying" rather than interpreting. I'm sure someone with more free time and free Westlaw access can find reams of opinions in which Scalia's firebreathing rhetoric went beyond "clarification," so it's interesting that he would be so modest in summing up the Court's raison d'etre.

Scalia gets more explicit later in his opinion:

The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed - which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

A couple of things here. First, Scalia broadly indicts the Court for attempting to "right all wrongs and repair all imperfections through the Constitution." This may be a reaction to the perception that new Supreme Court appointees, such as Sotomayor, will try to create substantive good, perhaps even justice, by wielding constitutional authority. Later in the quote, however, Scalia pulls back from this and suggests that his real gripe with the majority's decision stems from his usual objection to judicially-created standards "ungoverned by any discernible rule[s]." Scalia is a rules-not-standards kind of guy, and he's offended by the Kennedy-esque mush that will henceforth be applied to recusal motions.

Still, those nuggets about "clarifying" rather than "righting wrongs," on the eve of Sotomayor's confirmation hearings and inevitable appointment, can't be a coincidence.

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This page contains a single entry by hb published on June 8, 2009 2:30 PM.

I Can't Explain was the previous entry in this blog.

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