Caperton: Correct Today, Compelling Tomorrow

Abstract:     
This symposium article asserts that Caperton v. A.T. Massey Coal Co. is correct in result; correct in its narrowness; and correct in calling on courts to be more rigorous in recusal than due process requires. The article argues that Caperton is a model of judicial restraint and that, paradoxically for a decision overturning a state justice's non-recusal, the majority's approach is a model of cooperative federalism. These characteristics are particularly exemplified by the degree to which the opinion tracks the counsel offered by the Conference of Chief Justices, both as to what the opinion decides, and as to what it does not decide. Second, the article asserts that the breadth of support for the petitioners in Caperton, combined with state-level developments in the decision's aftermath, support the proposition that the decision's greatest impact will be not as dispositive precedent in itself, but in spurring greater vigilance in recusal, both systemically and among individual jurists.

Number of Pages in PDF File: 13

Accepted Paper Series