The Deterrent Effect on Judicial Activism

Just because lawsuit abuse is a fact of life, but we’re not going to throw whole idea of pursuing lawsuits, are we? If we expand the ability of consumers to go after a manufacturer due to damages from a faulty product or service, are we being unfair to corporate America? Not at all. Lawsuits provide a deterrent effect.

The same can be true of judicial conduct: The NY Times:

In a closely watched case involving the confluence of justice, politics and money, the Supreme Court ruled for the first time that the Constitution can require an elected judge to step aside in a particular case based on campaign spending in state judicial races. In a 5-to-4 decision released on Monday, the high court found that the circumstances surrounding Justice Brent D. Benjamin of the West Virginia Supreme Court and a lawsuit involving the Massey Energy Company, his major campaign contributor, were so “extreme” that there was no question that Justice Benjamin should have disqualified himself.

“The facts now before us are extreme by any measure,” Justice Anthony M. Kennedy wrote for the majority. “The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.”

It was an extreme appearance of a conflict of interest warranting a recusal by the judge. It’s the worst form of judicial activism and a reason why a judge should always recuse themselves from a case before them. So it would be surprising to see that the conservative Justices on our Supreme Court would have sided with what appears to be a judicial activist, a judge who decided in favor of a major campaign supporter.

Chief Justice John G. Roberts Jr. wrote a dissent in which he asserted that, contrary to the majority’s insistence, the outcome in Caperton v. Massey “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

Actually, the decision will have a deterrent effect on other judges who might want to ignore the potential bias and appearance of a conflict of interest in future cases. A DETERRENT EFFECT! Citizens should question the bias of a judge if they notice a problem. We’re all adults here. Roberts apparently doesn’t get it:

"The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case,” the chief justice wrote. Joining the chief justice in dissent were Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The Campaign Legal Center, which describes itself as a nonpartisan, nonprofit organization working in the areas of campaign finance and elections, political communication and government ethics (said), “It is surprising that four justices could muster a dissent given the particularly appalling set of circumstances that gave rise to this case,” the center said in a statement.

That’s because these four conservatives are judicial activists. It’s never been more apparent.