2009-2010 State Judicial Reform Efforts

State Judicial Reform After Caperton v. Massey

July 20, 2010

On June 8, 2009, in its decision in Caperton v. A.T. Massey Coal Co., the United States Supreme Court reaffirmed that an impartial, unbiased tribunal is the sina qua non of due process of law. In Caperton, the Court announced that the constitution requires a judge's recusal "when the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable" --- when, that is, there is a "serious, objective risk of actual bias."   

Writing for the majority in Caperton, Justice Anthony Kennedy made clear, however, that states can require recusal even in situations that do not give rise to questions of constitutional significance. Justice Kennedy noted that "States may choose to ‘adopt recusal standards more rigorous than due process requires,'" and on this point, even the dissenting Justices agreed. Caperton's observation that the "constitutional floor" is distinguished from the "ceiling set ‘by common law, statute, or the professional standards of the bench and bar'" echoed a point made by Justice Kennedy in his concurring opinion in Republican Party of Minnesota v. White. There, he wrote that to mitigate threats to the impartiality of the courts, states "may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards."  

Various states have accepted the invitation to develop more detailed and rigorous recusal standards in recent months. Here we catalogue those state efforts on recusal, as well as related efforts to reform judicial selection processes. The charts below, last updated on 11/20/2010, include brief summaries of each of the state initiatives, with links to relevant materials and news articles.

2009-10 Judicial Disqualification Initiatives in the States (updated 11/20/2010)