Rethinking ‘Bias’: Judicial Elections and the Due Process Clause after Caperton v. A.T. Massey Coal Company

Abstract

In Caperton v. A.T. Massey Coal Company, the Supreme Court held that litigants have a constitutional right to a judiciary free from a serious risk of actual bias, but attempted to limit the reach of the holding by asserting that such a risk would only arise in extreme cases.

In reality, however, what the Court calls “bias” arises in most or all cases heard by elected judges. Bias is, in fact, the mechanism by which elected judiciaries function. It is an element of judicial elections that is intended, constitutive, and, in some views, normatively desirable.

Thus, the Caperton Court’s uncritical embracing of an anti-bias perspective undermines the very practice of selecting judges democratically. The Court has brought to the forefront a divisive and discomforting question that it has previously avoided – does the Due Process Clause prohibit judicial elections altogether?

If the Court wishes to answer this question without overruling Caperton or declaring judicial elections unconstitutional, it will have to articulate a vision of the relationship between Due Process rights and democratic judicial selection that explains why the risk of bias in favor of campaign contributors is constitutionally intolerable while the risk of bias in favor of majority-preferred legal outcomes or litigants is not.