Brent Benjamin 
Justice Brent Benjamin refused to recuse.

The U.S. Supreme Court split 5-4 today in favor of forcing a state supreme court justice to recuse himself from ruling on a case.  Caperton v. A. T. Massey Coal Co., Inc., No. 08-22 (U.S. June 8, 2009).

The plaintiffs had won a $50 million verdict and judgment against A. T. Massey Coal Company.

As the case headed upstairs, the CEO of A. T. Massey, Don Blankenship, spent north of $3 million to help lawyer Brent Benjamin win election to the West Virginia Supreme Court of Appeal against an incumbent.

Having taken his seat on the court, Justice Benjamin cast the deciding vote to overturn the $50 million award.

The majority set a "probability of bias" test for recusal under the due process clause of the fourteenth amendment.  Justice Benjmain failed the test, the majority held.

Along the way, the Court offered thoughts on judging:

Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case.  This does not mean the inquiry is a simple one.  "The work of deciding cases goes on every day in hundreds of courts throughout the land.  Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more.  Nothing could be farther from the truth."  B. Cardozo, The Nature of the Judicial Process 9 (1921).

The judge inquires into reasons that seem to be leading to a particular result.  Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work.  To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings.  There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factror is not the real one at work.  If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.

Caperton, slip op. at 12-13.

Justices Breyer, Ginsburg, Souter, and Stevens joined the opinion for the Court by Justice Anthony Kennedy.

Chief Justice John Roberts and Justice Antonin Scalia wrote separate dissenting opinions.  Associate Justices Alito, Scalia, and Thomas joined the Roberts dissent, in which the Chief Justice posed 40 questions to show how unworkable the "probability of bias" standard will prove in practice.  These include whether parties may take "discovery with respect to the judge's recusal decision".

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