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Caperton v. Massey

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of a $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign. Did Benjamin’s failure to recuse violate the Due Process Clause?

Published: June 8, 2009


On June 8, 2009, the U.S. Supreme Court issued its ruling in Caperton v. Massey.  In a 5–4 opinion written by Justice Kennedy, the court concluded that, given the “serious risk of actual bias,” the Due Process Clause required the recusal of Judge Brent Benjamin.  Case background can be found below the list of amicus briefs on the merits.   

The legal community greeted news of the decision with excitement.  H. Thomas Wells, Jr., President of the American Bar Association, “applauded the decision.” Bert Brandenburg, executive director of Justice at Stake, deemed the decision “a tremendous victory.”  The Brennan Center’s James Sample hailed the decision as a “victory…for the rule of law.”    

Excerpts from the opinion, and briefs filed in the Supreme Court, follow below.

Justice Kennedy, writing for the majority:

“We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.  The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” 

“Justice Benjamin did undertake an extensive search for actual bias.  But, as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved…The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process.”

“Our decision today addresses an extraordinary situation where the Constitution requires recusal.”

Justice Roberts, dissenting:

“…a ‘probability of bias’ cannot be defined in any limited way. The Court’s new ”rule" provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be."

Justice Scalia, dissenting:

“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.”  

Case History in the U.S. Supreme Court

On November 14, 2008, the U.S. Supreme Court agreed to hear Caperton v. Massey. The case was argued March 3, 2009–click here to download transcript.

To download the Petitioners brief, filed December 29, 2008 with Theodore B. Olson as counsel of record, click here. Filed January 28, 2009, the Respondents brief can be downloaded here. Additionally, the reply brief for Petitioners, filed February 24, 2009, can be downloaded here.

Brief of the Conference of Chief Justices as Amicus Curiae in support of neither party, available here:

“The Conference takes the position that, under certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings.”

Amicus Briefs in Support of Petitioners, with Excerpts

Posted January 5, 2009

Brief Amicus Curiae, 27 former state Supreme Court Chief Justices and Justices, available here:

“Amici uniformly believe that the participation of Justice Benjamin in this case created an appearance of impropriety. All amici participating in this brief would have recused if they had benefited from the level and proportion of independent expenditures by the CEO of a party to a case pending before the court.”

Brief Amicus Curiae, The Committee for Economic Development, Intel Corp., Lockheed Martin Corp., Pepsico, Wal-Mart Stores, and Transparency International USA, available here:

“Public confidence in judicial integrity and in the evenhandedness of the judicial system is a critical element of America’s stable, prosperous business climate.” Justice Benjamin’s refusal to recuse himself “created an appearance of bias that would diminish the integrity of the judicial process in the eyes of any reasonable person.”

A U.S. Supreme Court decision to require Justice Benjamin’s recusal “would signal to businesses and the general public that judicial decisions cannot be bought and sold.”

Brief Amicus Curiae, The Center for Political Accountability and Zicklin Center for Business Ethics Research at the Wharton School, available here:

“The escalation of judicial campaign spending traps business leaders into a classic 'prisoner’s dilemma.' For ethical and financial reasons, most corporations would prefer to avoid spending money … for a seat on a court where it has a matter pending … In today’s election environment, however, a corporation must consider the likelihood that its opponent in high-stakes litigation may actively support one or more of the judges that will hear its case.”

“Mandatory recusal is necessary to stanch this campaign spending arms race and maintain the integrity of the judicial system. The economy and the rule of law cannot thrive without robust safeguards of judicial impartiality.”

Brief Amicus Curiae, The Brennan Center for Justice, the Campaign Legal Center, and the Reform Institute, available here:

“The $3 million in expenditures; the fact that those expenditures represented more than all other financial support for Justice Benjamin combined; the sole interested source of those funds; the timing of the expenditures; and the other facts of this case are so egregious-by today’s standards at least-that they offer the Court the ideal opportunity to reinforce one of the most fundamental rights in any system based on the rule of law: the right to a fair hearing before an impartial arbiter.”

Brief Amicus Curiae, The American Bar Association, available here:

“The magnitude and timing of the contributions to Justice Benjamin’s campaign invite the Court to delineate the considerations that a judge should make in determining whether recusal is required by the Due Process Clause when a campaign contributor is a party in a case before the judge.”

Brief Amicus Curiae, The American Academy of Appellate Lawyers, available here:

“As long as the states continue to elect judges, contributions to judicial campaigns will remain necessary. … Nevertheless, the magnitude of Mr. Blankenship’s contribution to Justice Benjamin’s campaign is so great that it is easy to say it crossed the line of impropriety.”

Brief Amicus Curiae, The Justice at Stake Campaign (with support from 27 government reform groups, including Common Cause, the League of Women Voters and the American Judicature Society), available here:

“The facts of this case are extraordinary … A ruling by the court that the facts of even this case do not present a constitutionally significant threat to equal justice would significantly … weaken state reform efforts.”

Brief Amicus Curiae, The National Association of Criminal Defense Lawyers, available here:

“Ruling for Petitioners here, even on narrow and fact-specific grounds, will send a much-needed signal that judicial electioneering, though generally valid, may in some particular cases cross a constitutional line and require recusal to ensure the actuality and appearance of an unbiased judge.” 

Brief Amicus Curiae, The American Association for Justice, available here.

“The record in this case makes plain that the exorbitant financial efforts to influence the election of a judge who would inevitably sit on the appeal of the principal’s pending litigation required that judge’s recusal as a matter of due process.” 


Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court-more than 60% of the total amount spent to support Justice Benjamin’s campaign-while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3–2 decision overturning that verdict.

According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the Petitioners, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.”

Download Petition for Writ of Certiorari here.

“The sole interested source of money, the enormous sums, and the timing of the expenditures in this case constitute an egregious example of a national trend-brazen attempts to purchase influence in pending cases,” said James Sample, counsel for the Brennan Center.  “Ted Olson and the petitioners are squarely on the mark-this case is far beneath the floor of the most basic notions of due process.”

Documents and News of Note

8/16/08, Petitioners decided to bring Justice Benjamin’s concurring opinion to the Court’s attention, and filed a Supplemental Brief, available here.

9/3/08, Respondents file Brief in Opposition to Cert, available here.

9/16/08, Petitioners file Reply Brief for Cert, available here.

9/7/08, in an editorial, the NY Times calls for Massey to be added to the Court’s docket.

11/14/08, the Supreme Court grants cert.

2/26/09, editorial from Tony Mauro of USA Today asks, “Can money obstruct justice?”

Filings in Support of Supreme Court Cert

Along with the brief filed by the Brennan Center, CLC, and the Reform Institute, several other amicus briefs were also filed on August 4, 2008 in support of the Petitioners. Excerpts included with links to the briefs below.

Brief Amicus Curiae, Brennan Center, Campaign Legal Center & Reform Institute, available here:

"Amici do not suggest that any campaign expenditure by a litigant on behalf of a judge necessitates disqualification. But the proposition that campaign expenditures, regardless of the amounts, timing, or manner in which they are made never cross over “the outer boundaries of judicial qualification” established by the Due Process Clause would in effect nullify one of the Constitution’s most fundamental protections. Lavoie, 475 U.S. at 828."

Brief Amicus Curiae, American Bar Association, available here:

“The ABA submits that the facts of this case would require judicial disqualification under the current version of the ABA’s Model Code… The conduct here, accepting contributions of this magnitude from a litigant and refusing to recuse-certainly creates an appearance of impropriety.”

“Judicial elections and judicial campaign contributions in the normal course do not violate due process.  However, implicit in the Model Code’s Rule 2.11A(A)(4) is that, at some contribution level, fundamental fairness concerns of actual or apparent bias are triggered.  Because the Court has held that the appearance, as well as the reality, of judicial impartiality animates the Due Process Clause, the ABA submits that this case presents an important opportunity for the Court to clarify the constitutional boundaries that govern…judicial campaign contributions.”

Brief Amicus Curiae, Committee for Economic Development, available here:

“By not recusing himself from the appeal of a $50 million jury verdict against A.T. Massey Coal Company (”Massey")-after he received over $3 million in post-verdict, pre-appeal campaign support from Massey’s CEO-West Virginia Supreme Court Justice Brent Benjamin created an appearance of bias that would diminish the integrity of the judicial process in the eyes of any reasonable person."

“A holding by the Court that the Due Process Clause required Justice Benjamin’s recusal would provide crucial guidance to elected judges and preserve public confidence in judicial elections. Such confidence is of particular value to those engaged in commerce, who rely on even-handed justice to make informed financial and investment decisions.”

Brief Amicus Curiae, Washington Appellate Lawyers Association, available here:

“This Court has not yet had an opportunity to define the relationship between judicial campaign contributions and the due process clause. The time is right for an exploration of that relationship, judicial contributors deserve guidance on the impact their contributions may have, non-donor parties to lawsuits need guidance on the applicable principles, judges themselves would benefit from this Court’s review, and this case presents an ideal vehicle for such a review.”

Brief Amicus Curiae, Public Citizen, available here:

“Whether or not the decisions below were in fact affected by the sizable campaign contributions described in the petition, petitioners can have no faith that the outcome of the case was not affected by the contributions to the judge who ruled against them.”