Does the Supreme Court Read John Grisham?

A decision handed down yesterday by the U.S. Supreme Court reads surprisingly like a John Grisham novel. In The Appeal , a polluting company financed the election of a conservative judge in order to shift the balance on a closely divided state supreme court. In Caperton v. A.T. Massey Coal Co., Case No. 08-22 (U.S. 2009), the chairman of a company hit with a $50 million verdict financed the election of a justice to the State Supreme Court of Appeals who was the deciding vote in reversing the judgment. While Grisham's tale (spoiler alert here) was one where money won the day, the U.S. Supreme Court did not allow a similar result.

In the Massey case, a jury awarded a $50 million verdict against the coal company for fraudulent misrepresentation, concealment and tortious interference. The company's chairman took a sudden interest in state judicial races, spending $3 million to help elect a challenger running for the state Supreme Court of Appeals. This contribution was greater than the amount raised by the candidate from all other sources. The challenger unseated the incumbent judge, winning by just 50,000 votes. The newly elected justice then voted as part of a 3-2 majority to reverse the judgment. Not surprisingly, he refused to remove himself from the case.

At first it looked like Massey's chairman had made a pretty shrewd investment. He spent $3 million of his own money to get rid of a $50 million judgment against his company. Talk about return on invested capital!

However, on June 8, 2009, the U.S. Supreme Court said not so fast. Under the Due Process Clause of the Constitution, a judge must remove himself from a case if “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Writing for the majority, Justice Kennedy ruled that this was a case where the plaintiff did not receive due process because his case was decided by a judge who could not be expected to be fair. "Just as no man is allowed to be a judge in his own cause, similar fears of bias arise when . . . a man chooses the judge in his own cause."

The conservative judges dissented, worrying that the court had set too vague of a standard and that courts would be faced with a lot of frivolous motions to remove the judge. However, in this case, I think that the result was spot on. If nothing else, the result was justified by the sheer audacity of the effort to elect a judge prone to reverse the verdict.

I have long felt that electing judges is a dangerous proposition. A small percentage of the voters cast votes for candidates they know nothing about. A catchy name (see my prior blog article about Ken Law) or the right party affiliation can often mean more than judicial qualifications. The system also puts lawyers and judges in an awkward position where the judge must ask for money from the lawyers appearing in his court and the lawyers feel pressured to contribute to the winning candidate. In Caperton v. A.T. Massey Coal Co., the Supreme Court stepped in and fixed an obvious abuse. Unfortunately though, you can't count on the Supreme Court to swoop in to the rescue in every case. The best that you can hope for is that judges will recognize when their contributors' interests are closely implicated in a case and have the courage to step back.