In which SCOTUS gets one very right despite Roberts and company

[drwex]

By a far-too-narrow (5-4) majority, SCOTUS has said that yes, if you buy a judge then it has the effect of denying due process to your opponent.

Well, duh.

Case paperwork: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-22

Elizabeth Wydra really takes Roberts (and to a lesser extent Scalia) to task on Daily Kos: http://www.dailykos.com/storyonly/2009/6/9/740499/-Scalia-and-Roberts-Ignore-the-Constitution.

The facts of this case are so egregious that I'm really honestly baffled what the minority thought it was saying, other than "it will make things really complicated and we don't like things complicated so we'll let people get away with egregious crap so we don't have a lot of complicated lawsuits." I'll have to read the dissent in detail - the excerpts I've read are unconvincing. It's quite clear that Justice Benjamin was elected with the support of over $3 million in Massey Coal money - more than double the amount spent by every other contributor combined. It's also clear that he repeatedly refused to recuse himself in the face of calls from pretty much everyone from the ABA on down. His was the deciding 3-2 vote.

To give the minority some due, Kennedy's decision is going to require further decisions to clarify such phrases as "a significant and disproportionate influence." But such is the role of jurisprudence - to create interpretable standards such as these by which we differentiate legal behavior from illegal. In addition, Kennedy and the majority seem willing to place their own limits, setting a fairly high bar to which a situation would have to rise in order for recusal to be required or lack of recusal to be a cause for action.

Comments

[feste-sylvain.livejournal.com]

I believe this particular case was decided correctly.

But by my first cursory glance at the dissent, they seem to be focusing on the key events which trigger the Due Process clause. They point out that dirty Justice Benjamin had no direct pecuniary interest in the case, which is the usual Due Process trigger. They also point out that he wasn't directly bribed, which is clear grounds for a mistrial and further charges against the briber as well as bribee.

I'm one of those people who believes that judges shouldn't be elected to their bench; this is one reason why. (I've never been a democrat; imagine if the judges who'd decide on whether gays could marry were elected by the majority of the voters.)

So I'm also going to have to re-read the majority opinion, after I get a better handle on the dissent.

[selenite.livejournal.com]

Last election I had about 30-40 judges to vote on. Fortunately most of the races were uncontested. Researching the remainder was an exercise in frustration as they can't take stands on the issues and rarely comment on their opponents. So I had to find what controversial cases they'd ruled on or see if anyone was making an endorsement. The defense lawyers' bar usually comes out with a list but it's not like they're impartial.

So hell yes, state and local judges should be appointed rather than elected. It's a lot easier to boot out a legislator.

[n5red.livejournal.com]

I sure heard a story from a friend up in Lampassas County. A judge gave the ok for an asphalt plant to build build on a flood plain upstream of where the city of Lampassas gets their water supply.

[c1.livejournal.com]

Regarding the majority opinion, I am reminded of Jacobellis v. Ohio, and Justice Stewart's famous line "I know it when I see it". Perhaps the bit that resonated with me the most is where Kennedy raises the point that almost all states have adopted the ABA's code, wherein it states that a justice should recuse himself when there's the appearance of bias, where a reasonable person could see the potential for bias.

The notion of human weakness was raised in the majority: I think it's a good way to define the grey area that is bias. Roberts raises important questions in asking how big a contribution should be, as well as how long does bias last, but to a certain extent, those should be answered by the Stewart test, as administered by the reasonable man standard. This should leave a very small number of outliers that will be defined by the courts, further cleaning up the grey areas.

As far as Scalia's dissent, I'm in agreement that there's a perception that litigation is a game, and a game that typically favours the rich: to wit, OJ Simpson got the finest justice that money can buy. (And yes, if the LA Crime Lab has to resort to shoddy evidence collection in order to hang a man, they truly deserve to get spanked in court.)
But I think he's taking it to the extreme that this game will become an end unto itself. Yes, decades after Jacobellis and Miller, we're still defining what is obscene behaviour, but I don't see the mad rush clogging up the courts.
Furthermore, I'm not sure his Talmud argument is suggesting that the administration of justice is ultimately a futile endeavor, but it sure sounds like it. Is he arguing, therefore, that he should really consider stepping down? (And in which case, who will Thomas hide behind?)