ARTICLE: Rethinking "Bias": Judicial Elections and the Due Process Clause After Caperton v. A.T. Massey Coal Co. Skip over navigation
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Copyright (c) 2011 Arkansas Law Review, Inc.
Arkansas Law Review

ARTICLE: Rethinking "Bias": Judicial Elections and the Due Process Clause After Caperton v. A.T. Massey Coal Co.

Symposium 2011

Arkansas Law Review

64 Ark. L. Rev. 179


Eric Sandberg-Zakian*


In 2004, Don Blankenship, president of the A.T. Massey Coal Company, spent more than $ 3 million of his own money supporting Brent Benjamin's candidacy in an electoral race for a seat on the West Virginia Supreme Court. 1 At the time Blankenship made these massive expenditures, Massey Coal was in the process of appealing a $ 50 million tort verdict in Caperton v. A.T. Massey Coal Co., a case that Blankenship knew the state supreme court would soon consider. 2

Benjamin won the election, and subsequently declined to recuse himself from Massey Coal's appeal in Caperton. 3 He ultimately cast the deciding vote overturning the verdict. 4 The losing parties filed a petition for a writ of certiorari with the United States Supreme Court, 5 arguing that Benjamin's refusal to recuse himself violated the Constitution's Due Process Clause. 6 The Court granted the petition. 7

In a sharply divided decision, a five-member majority found for the petitioners. Justice Kennedy wrote the Court's opinion, which held that the Due Process Clause requires recusal when there is a "serious risk of actual bias" 8 and that, because "Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case," 9 there was "a serious, objective risk of actual bias that required Justice Benjamin's recusal." 10

Caperton constitutes a significant shift in the Court's constitutionally required recusal jurisprudence. The Court had long maintained that the Due Process Clause constitutionalized the common law's constrained ...
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