At annual Supreme Court Forum, experts discuss “system effects” and judicial elections (video)

HLS Professor Lawrence Lessig, far right, at the Harvard Law Review Supreme Court Forums

Credit: HARVARD LAW RECORD HLS Professor Lawrence Lessig, far right, at the Harvard Law Review Supreme Court Forums

The Supreme Court’s 2008 ruling in Caperton v. A.T. Massey was the main focus of the Harvard Law Review’s Supreme Court forum this year. Held annually, the Supreme Court Forum focuses on the Law Review’s Supreme Court issue, which is published in November.

Harvard Law School Professors Adrian Vermeule ’93 and Lawrence Lessig, as well as Stanford Law School Professor Pamela Karlan and University of Tennessee College of Law Professor Penny White took part in the discussion, which was moderated by HLS Professor Richard Fallon [photo right]. (Watch a webcast.)

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Each of the panelists contributed an article to this year’s issue, which analyzes the 2008-09 Supreme Court term.

Vermeule, who authored the forward to the November issue, opened the event by discussing his paper, “System Effects and the Constitution.” While the other members of the panel focused on a particular case from the Court’s previous term in their papers, Vermeule said he instead addressed a more general theme in legal theory and that he hoped his discussion would be useful for academics analyzing judges and judicial decision-making.

Vermeule focused in particularly on what he called “aggregation”. “There are many analytic pitfalls involving aggregation,” he said, “and these analytic pitfalls claim lots of victims in constitutional theory because constitutional theory chronically involves two levels of aggregation: individuals to institutions, and then among institutions to an overall constitutional order. At both levels of aggregation, system effects can arise.”

A system effect arises when the properties of an aggregate differ from the properties of its members, Vermeule explained. For example one might assume that if an overall constitutional order is to be democratic, then the individual components must also be. On the contrary, Vermeule said, a very undemocratic court system might be necessary for the overall democratic order.

Vermeule used the Caperton case for illustration. The case dealt with the circumstances under which a judge has a duty to recuse him or herself. In Caperton, a judge on the West Virginia Supreme Court received large campaign donations from A.T. Massey Coal Company while a case involving the company was being litigated below in the West Virginia Court of Appeals. As the case advanced to the state’s Supreme Court, the judge who had received the contributions refused to recuse himself, and was ultimately part of the 3 to 2 majority that ruled in favor of A.T. Massey.

In a 5-4 decision, the Supreme Court found for Caperton. Justice Kennedy, writing for the majority said that the appearance of a conflict of interest was “so extreme” that the judge’s failure to recuse himself constituted a threat to the plaintiff’s Constitutional right to due process.

The Caperton case, Vermeuele said, could be called a “nightmare of aggregation.” Even if most of the judges on a multi-member court are sincere and unbiased legalists, “the court as a whole…may act in a politically biased fashion, so long as even one biased member occupies a pivotal voting position.”

One might also imagine the converse to be true, said Vermeule. “It’s just a fallacy of composition to assume that if most of the judges on a court are biased or political or whatever we mean by those terms, that the court will reach biased outcomes. It might or might not: everything depends on how the votes are distributed.”

Vermeule concluded by cautioning academics when investigating the voting behavior of individual judges and applying that analysis to overall claims about the quality of judicial panels.

In the first commentary specifically about the Caperton case, Karlan gave context for the Supreme Court’s decision by discussing how the Court has addressed questions of judicial bias in the past. Her article, “Electing Judges, Judging Elections, and the lessons of Caperton,” concludes that the Supreme Court is “schizophrenic and ambivalent and perhaps even a little bit pull-the-houses-down-over-their-heads about judicial elections.”

Karlan gave a bit of historical context for the idea of judicial elections. “The Jacksonians thought that if you wanted to have a democratic system, judges had to be elected just as everyone else was,” she explained. “They thought that the only way to prevent powerful interests from deciding who judges were from the processes of appointment was to give it to the people and allow the people to elect instead.”

In Caperton, then, the Court was ultimately trying to figure out what we do when we elect judges and what it means to be biased under the circumstances in which judges are elected to their positions but also expected to be politically unbiased, Karlan said.

Karlan observed that the Court has sometimes said judicial elections are just like other elections, so the same rules about political donations and other regulations should apply. But in other cases, she said, the Court has taken the view that judicial elections are special, and the usual rules should not apply.

This inconsistency is existent in Caperton, Karlan said. The decision shows that “the court hasn’t grappled…with some of the difficult questions about the relationship it should have to dealing with the political process and where it can express the political process to cure itself,” Karlan explained.

More importantly, she said, the Caperton decision points to a problem with judicial elections: If you think that what makes judges biased is gratitude to supporters or fear of losing that support the next time around, then there is a much larger problem. “If you think judges are going to be swayed by gratitude and fear, it’s the gratitude and fear, and not the money standing alone. The money only matters when it’s translated into votes.”

Lessig was equally critical of the Supreme Court’s ruling in Caperton, but for a very different reason. Although there was clearly a perception of corruption, the Court had no right to conclude that the judge’s refusal to recuse was a violation of due process, Lessig concluded in his article, “What Everybody Knows and What Too Few Accept.”

The issue in Caperton was not about whether the “soul” of the judge was corrupted, but whether the behavior created a perception that the institution has been corrupted, he said.

“Perception is an odd entity,” Lessig said. “Perception trades on cultural salience, and so one very important fact about the perception involved here is that we are at a moment in our history where there is a particular salience associated with money in the context of securing tenure for public officials.”

Lessig said he believes it is clear that the judge undermined the confidence of the public in the judicial process. Thus, the behavior ought to be regulated.

But, Lessig went on to say, “I don’t think the Supreme Court was right to conclude that this was a violation of due process.” His skepticism about the Court’s ruling in Caperton stems from an argument about the Court’s “fidelity to role,” Lessig explained. When deciding cases, the Court ought to consider how the opinion strengthens or supports the institution of the Court itself, he said.

Lessig critiqued the Court for undermining the ability of other institutions – such as Congress or other independent means of authority such as the Bar – to more effectively determine policies regarding judicial elections.

“My concern is…that the Court itself is incapable of launching the series of experiments that are necessary to figure out exactly what the right balance here is,” Lessig said. “Secondly, the Court occupying the field of adjudicating the question of what the right balance is, tends to undermine the eagerness of other institutions to play a co-equal role in that. By stepping in as vaguely but as forcefully as they have, it both leaves open lots of opportunity for them [the Court] to re-visit and draw their own decision into doubt, and undermines other institutions that should be doing this work.”

White concluded the panel by discussing her article, “Relinquished Responsibilities.” A former judge and expert on judicial ethics, White strongly disagreed with Lessig’s view that the Court should not have ruled in the case, and said she was dismayed that the Court ruled by such a narrow margin.

Although the case wasn’t directly about judicial elections, White agreed with Karlan in that Caperton called the system of judicial elections into question. She said she looked at the case from the perspective of the litigant who has a fundamental right to a fair trial. And, in this case, the judge’s perceived bias was enough to undermine that right.

“We just need to deal critically with whether electing judges is constitutional,” she said. “Period.”