Caperton v. A. T. Massey Coal Co., Inc.

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CAPERTON ET AL. v. A. T. MASSEY COAL CO., INC.,

ET AL.

CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST

VIRGINIA

No. 08–22. Argued March 3, 2009—Decided June 8, 2009

After a West Virginia jury found respondents, a coal company and its
affiliates (hereinafter Massey), liable for fraudulent misrepresenta
tion, concealment, and tortious interference with existing contractual
relations and awarded petitioners (hereinafter Caperton) $50 million
in damages, West Virginia held its 2004 judicial elections. Knowing
the State Supreme Court of Appeals would consider the appeal, Don
Blankenship, Massey’s chairman and principal officer, supported
Brent Benjamin rather than the incumbent justice seeking reelection.
His $3 million in contributions exceeded the total amount spent by all
other Benjamin supporters and by Benjamin’s own committee. Ben
jamin won by fewer than 50,000 votes. Before Massey filed its ap
peal, Caperton moved to disqualify now-Justice Benjamin under the
Due Process Clause and the State’s Code of Judicial Conduct, based
on the conflict caused by Blankenship’s campaign involvement. Jus
tice Benjamin denied the motion, indicating that he found nothing
showing bias for or against any litigant. The court then reversed the
$50 million verdict. During the rehearing process, Justice Benjamin
refused twice more to recuse himself, and the court once again re
versed the jury verdict. Four months later, Justice Benjamin filed a
concurring opinion, defending the court’s opinion and his recusal de
cision.
Held: In all the circumstances of this case, due process requires recusal.
Pp. 6–20.
(a) The Due Process Clause incorporated the common-law rule re
quiring recusal when a judge has “a direct, personal, substantial, pe
cuniary interest” in a case, Tumey v. Ohio, 273 U. S. 510, 523, but
this Court has also identified additional instances which, as an objec
2 CAPERTON v. A. T. MASSEY COAL CO.

Syllabus

tive matter, require recusal where “the probability of actual bias on
the part of the judge or decisionmaker is too high to be constitution
ally tolerable,” Withrow v. Larkin, 421 U. S. 35, 47. Two such in
stances place the present case in proper context. Pp. 6–11.
(1) The first involved local tribunals in which a judge had a fi
nancial interest in a case’s outcome that was less than what would
have been considered personal or direct at common law. In Tumey, a
village mayor with authority to try those accused of violating a law
prohibiting the possession of alcoholic beverages faced two potential
conflicts: Because he received a salary supplement for performing ju
dicial duties that was funded from the fines assessed, he received a
supplement only upon a conviction; and sums from the fines were de
posited to the village’s general treasury fund for village improve
ments and repairs. Disqualification was required under the principle
that “[e]very procedure which would offer a possible temptation to
the average man as a judge to forget the burden of proof required to
convict the defendant, or which might lead him not to hold the bal
ance nice, clear and true between the State and the accused, denies
the latter due process of law.” 273 U. S., at 532. In Ward v. Monroe
ville, 409 U. S. 57, a conviction in another mayor’s court was invali
dated even though the fines assessed went only to the town’s general
fisc, because the mayor faced a “ ‘ possible temptation’ ” created by his
“executive responsibilities for village finances.” Id., at 60. Recusal
was also required where an Alabama Supreme Court justice cast the
deciding vote upholding a punitive damages award while he was the
lead plaintiff in a nearly identical suit pending in Alabama’s lower
courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper con
stitutional inquiry was not “whether in fact [the justice] was influ
enced,” id., at 825, but “whether sitting on [that] case . . . ‘ “would of
fer a possible temptation to the average . . . judge to . . . lead him not
to hold the balance nice, clear and true,” ’ ” ibid. While the “degree or
kind of interest . . . sufficient to disqualify a judge . . . ‘[could not] be
defined with precision, ’ ” id., at 822, the test did have an objective
component. Pp. 7–9.
(2) The second instance emerged in the criminal contempt con
text, where a judge had no pecuniary interest in the case but had de
termined in an earlier proceeding whether criminal charges should
be brought and then proceeded to try and convict the petitioners. In
re Murchison, 349 U. S. 133. Finding that “no man can be a judge in
his own case,” and “no man is permitted to try cases where he has an
interest in the outcome,” id., at 136, the Court noted that the circum
stances of the case and the prior relationship required recusal. The
judge’s prior relationship with the defendant, as well as the informa
tion acquired from the prior proceeding, was critical. In reiterating
 Cite as: 556 U. S. ____ (2009) 3

Syllabus

that the rule that “a defendant in criminal contempt proceedings
should be [tried] before a judge other than the one reviled by the con
temnor,” Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the
relationship between the judge and the defendant, id., at 465, the
Court noted that the objective inquiry is not whether the judge is ac
tually biased, but whether the average judge in his position is likely
to be neutral or there is an unconstitutional “ ‘potential for bias,’ ” id.,
at 466. Pp. 9–11.
(b) Because the objective standards implementing the Due Process
Clause do not require proof of actual bias, this Court does not ques
tion Justice Benjamin’s subjective findings of impartiality and pro
priety and need not determine whether there was actual bias.
Rather, the question is whether, “under a realistic appraisal of psy
chological tendencies and human weakness,” the interest “poses such
a risk of actual bias or prejudgment that the practice must be forbid
den if the guarantee of due process is to be adequately implemented.”
Withrow, 421 U. S., at 47. There is a serious risk of actual bias when
a person with a personal stake in a particular case had a significant
and disproportionate influence in placing the judge on the case by
raising funds or directing the judge’s election campaign when the
case was pending or imminent. The proper inquiry centers on the
contribution’s relative size in comparison to the total amount con
tributed to the campaign, the total amount spent in the election, and
the apparent effect of the contribution on the outcome. It is not
whether the contributions were a necessary and sufficient cause of
Benjamin’s victory. In an election decided by fewer than 50,000
votes, Blankenship’s campaign contributions—compared to the total
amount contributed to the campaign, as well as the total amount
spent in the election—had a significant and disproportionate influ
ence on the outcome. And the risk that Blankenship’s influence en
gendered actual bias is sufficiently substantial that it “must be for
bidden if the guarantee of due process is to be adequately
implemented.” Ibid. The temporal relationship between the cam
paign contributions, the justice’s election, and the pendency of the
case is also critical, for it was reasonably foreseeable that the pend
ing case would be before the newly elected justice. There is no allega
tion of a quid pro quo agreement, but the extraordinary contributions
were made at a time when Blankenship had a vested stake in the
outcome. Just as no man is allowed to be a judge in his own cause,
similar fears of bias can arise when—without the other parties’ con
sent—a man chooses the judge in his own cause. Applying this prin
ciple to the judicial election process, there was here a serious, objec
tive risk of actual bias that required Justice Benjamin’s recusal.
Pp. 11–16.
4 CAPERTON v. A. T. MASSEY COAL CO.

Syllabus

(c) Massey and its amici err in predicting that this decision will
lead to adverse consequences ranging from a flood of recusal motions
to unnecessary interference with judicial elections. They point to no
other instance involving judicial campaign contributions that pre
sents a potential for bias comparable to the circumstances in this
case, which are extreme by any measure. And because the States
may have codes of conduct with more rigorous recusal standards than
due process requires, most recusal disputes will be resolved without
resort to the Constitution, making the constitutional standard’s ap
plication rare. Pp. 16–20.
___ W. Va. ___, ___S. E. 2d ___, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C. J., filed a dis
senting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.
SCALIA, J., filed a dissenting opinion.
 Cite as: 556 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–22
_________________

HUGH M. CAPERTON, ET AL., PETITIONERS v.
A. T. MASSEY COAL COMPANY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

APPEALS OF WEST VIRGINIA

[June 8, 2009]

JUSTICE KENNEDY delivered the opinion of the Court.
In this case the Supreme Court of Appeals of West
Virginia reversed a trial court judgment, which had en­
tered a jury verdict of $50 million. Five justices heard the
case, and the vote to reverse was 3 to 2. The question
presented is whether the Due Process Clause of the Four­
teenth Amendment was violated when one of the justices
in the majority denied a recusal motion. The basis for the
motion was that the justice had received campaign contri­
butions in an extraordinary amount from, and through the
efforts of, the board chairman and principal officer of the
corporation found liable for the damages.
Under our precedents there are objective standards that
require recusal when “the probability of actual bias on the
part of the judge or decisionmaker is too high to be consti­
tutionally tolerable.” Withrow v. Larkin, 421 U. S. 35, 47
(1975). Applying those precedents, we find that, in all the
circumstances of this case, due process requires recusal.
I
In August 2002 a West Virginia jury returned a verdict
that found respondents A. T. Massey Coal Co. and its
2 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

affiliates (hereinafter Massey) liable for fraudulent mis­
representation, concealment, and tortious interference
with existing contractual relations. The jury awarded
petitioners Hugh Caperton, Harman Development Corp.,
Harman Mining Corp., and Sovereign Coal Sales (herein­
after Caperton) the sum of $50 million in compensatory
and punitive damages.
In June 2004 the state trial court denied Massey’s post­
trial motions challenging the verdict and the damages
award, finding that Massey “intentionally acted in utter
disregard of [Caperton’s] rights and ultimately destroyed
[Caperton’s] businesses because, after conducting cost­
benefit analyses, [Massey] concluded it was in its financial
interest to do so.” App. 32a, ¶10(p). In March 2005 the
trial court denied Massey’s motion for judgment as a
matter of law.
Don Blankenship is Massey’s chairman, chief executive
officer, and president. After the verdict but before the
appeal, West Virginia held its 2004 judicial elections.
Knowing the Supreme Court of Appeals of West Virginia
would consider the appeal in the case, Blankenship de­
cided to support an attorney who sought to replace Justice
McGraw. Justice McGraw was a candidate for reelection
to that court. The attorney who sought to replace him was
Brent Benjamin.
In addition to contributing the $1,000 statutory maxi­
mum to Benjamin’s campaign committee, Blankenship
donated almost $2.5 million to “And For The Sake Of The
Kids,” a political organization formed under 26 U. S. C.
§527. The §527 organization opposed McGraw and sup­
ported Benjamin. App. 672a–673a. Blankenship’s dona­
tions accounted for more than two-thirds of the total funds
it raised. Id., at 150a. This was not all. Blankenship
spent, in addition, just over $500,000 on independent
expenditures—for direct mailings and letters soliciting
donations as well as television and newspaper advertise­
 Cite as: 556 U. S. ____ (2009) 3

Opinion of the Court

ments—“ ‘to support . . . Brent Benjamin.’ ” Id., at 184a,
186a, 200a (bold typeface omitted) (quoting Blankenship’s
state campaign financial disclosure filings).
To provide some perspective, Blankenship’s $3 million
in contributions were more than the total amount spent by
all other Benjamin supporters and three times the amount
spent by Benjamin’s own committee. Id., at 288a. Caper­
ton contends that Blankenship spent $1 million more than
the total amount spent by the campaign committees of
both candidates combined. Brief for Petitioners 28.
Benjamin won. He received 382,036 votes (53.3%), and
McGraw received 334,301 votes (46.7%). App. 677a.
In October 2005, before Massey filed its petition for
appeal in West Virginia’s highest court, Caperton moved
to disqualify now-Justice Benjamin under the Due Process
Clause and the West Virginia Code of Judicial Conduct,
based on the conflict caused by Blankenship’s campaign
involvement. Justice Benjamin denied the motion in April
2006. He indicated that he “carefully considered the bases
and accompanying exhibits proffered by the movants.”
But he found “no objective information . . . to show that
this Justice has a bias for or against any litigant, that this
Justice has prejudged the matters which comprise this
litigation, or that this Justice will be anything but fair and
impartial.” Id., at 336a–337a. In December 2006 Massey
filed its petition for appeal to challenge the adverse jury
verdict. The West Virginia Supreme Court of Appeals
granted review.
In November 2007 that court reversed the $50 million
verdict against Massey. The majority opinion, authored
by then-Chief Justice Davis and joined by Justices Benja­
min and Maynard, found that “Massey’s conduct war­
ranted the type of judgment rendered in this case.” Id., at
357a. It reversed, nevertheless, based on two independent
grounds—first, that a forum-selection clause contained in
a contract to which Massey was not a party barred the suit
4 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

in West Virginia, and, second, that res judicata barred the
suit due to an out-of-state judgment to which Massey was
not a party. Id., at 345a. Justice Starcher dissented,
stating that the “majority’s opinion is morally and legally
wrong.” Id., at 420a–422a. Justice Albright also dis­
sented, accusing the majority of “misapplying the law and
introducing sweeping ‘new law’ into our jurisprudence that
may well come back to haunt us.” Id., at 430a–431a.
Caperton sought rehearing, and the parties moved for
disqualification of three of the five justices who decided
the appeal. Photos had surfaced of Justice Maynard vaca­
tioning with Blankenship in the French Riviera while the
case was pending. Id., at 440a–441a, 456a. Justice May­
nard granted Caperton’s recusal motion. On the other
side Justice Starcher granted Massey’s recusal motion,
apparently based on his public criticism of Blankenship’s
role in the 2004 elections. In his recusal memorandum
Justice Starcher urged Justice Benjamin to recuse himself
as well. He noted that “Blankenship’s bestowal of his
personal wealth, political tactics, and ‘friendship’ have
created a cancer in the affairs of this Court.” Id., at 459a–
460a. Justice Benjamin declined Justice Starcher’s sug­
gestion and denied Caperton’s recusal motion.
The court granted rehearing. Justice Benjamin, now in
the capacity of acting chief justice, selected Judges Cook­
man and Fox to replace the recused justices. Caperton
moved a third time for disqualification, arguing that Jus­
tice Benjamin had failed to apply the correct standard
under West Virginia law—i.e., whether “a reasonable and
prudent person, knowing these objective facts, would
harbor doubts about Justice Benjamin’s ability to be fair
and impartial.” Id., at 466a, ¶8. Caperton also included
the results of a public opinion poll, which indicated that
over 67% of West Virginians doubted Justice Benjamin
would be fair and impartial. Justice Benjamin again
refused to withdraw, noting that the “push poll” was “nei­
 Cite as: 556 U. S. ____ (2009) 5

Opinion of the Court

ther credible nor sufficiently reliable to serve as the basis
for an elected judge’s disqualification.” Id., at 483a.
In April 2008 a divided court again reversed the jury
verdict, and again it was a 3-to-2 decision. Justice Davis
filed a modified version of his prior opinion, repeating the
two earlier holdings. She was joined by Justice Benjamin
and Judge Fox. Justice Albright, joined by Judge Cook­
man, dissented: “Not only is the majority opinion unsup­
ported by the facts and existing case law, but it is also
fundamentally unfair. Sadly, justice was neither honored
nor served by the majority.” ___ W. Va. ___, ___, ___ S. E.
2d ___, ___; App. 633a. The dissent also noted “genuine
due process implications arising under federal law” with
respect to Justice Benjamin’s failure to recuse himself.
___ W. Va., at ___, n. 16, ___ S. E. 2d, at ___, n. 16; App.
634a, n. 16 (citing Aetna Life Ins. Co. v. Lavoie, 475 U. S.
813 (1986); In re Murchison, 349 U. S. 133, 136 (1955)).
Four months later—a month after the petition for writ
of certiorari was filed in this Court—Justice Benjamin
filed a concurring opinion. He defended the merits of the
majority opinion as well as his decision not to recuse. He
rejected Caperton’s challenge to his participation in the
case under both the Due Process Clause and West Virginia
law. Justice Benjamin reiterated that he had no “ ‘ direct,
personal, substantial, pecuniary interest’ in this case.’ ”
___ W. Va., at ___, ___ S. E. 2d, at ___; App. 677a (quoting
Lavoie, supra, at 822). Adopting “a standard merely of
‘appearances,’ ” he concluded, “seems little more than an
invitation to subject West Virginia’s justice system to the
vagaries of the day—a framework in which predictability
and stability yield to supposition, innuendo, half-truths,
and partisan manipulations.” ___ W. Va., at ___, ___ S. E.
2d, at ___; App. 692a.
We granted certiorari. 555 U. S. ___ (2008).
6 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

II

It is axiomatic that “[a] fair trial in a fair tribunal is a
basic requirement of due process.” Murchison, supra, at
136. As the Court has recognized, however, “most matters
relating to judicial disqualification [do] not rise to a consti­
tutional level.” FTC v. Cement Institute, 333 U. S. 683,
702 (1948). The early and leading case on the subject is
Tumey v. Ohio, 273 U. S. 510 (1927). There, the Court
stated that “matters of kinship, personal bias, state policy,
remoteness of interest, would seem generally to be matters
merely of legislative discretion.” Id., at 523.
The Tumey Court concluded that the Due Process
Clause incorporated the common-law rule that a judge
must recuse himself when he has “a direct, personal,
substantial, pecuniary interest” in a case. Ibid. This rule
reflects the maxim that “[n]o man is allowed to be a judge
in his own cause; because his interest would certainly bias
his judgment, and, not improbably, corrupt his integrity.”
The Federalist No. 10, p. 59 (J. Cooke ed. 1961) (J. Madi­
son); see Frank, Disqualification of Judges, 56 Yale L. J.
605, 611–612 (1947) (same). Under this rule, “disqualifi­
cation for bias or prejudice was not permitted”; those
matters were left to statutes and judicial codes. Lavoie,
supra, at 820; see also Part IV, infra (discussing judicial
codes). Personal bias or prejudice “alone would not be
sufficient basis for imposing a constitutional requirement
under the Due Process Clause.” Lavoie, supra, at 820.
As new problems have emerged that were not discussed
at common law, however, the Court has identified addi­
tional instances which, as an objective matter, require
recusal. These are circumstances “in which experience
teaches that the probability of actual bias on the part of
the judge or decisionmaker is too high to be constitution­
ally tolerable.” Withrow, 421 U. S., at 47. To place the
present case in proper context, two instances where the
Court has required recusal merit further discussion.
 Cite as: 556 U. S. ____ (2009)
7

Opinion of the Court

A

The first involved the emergence of local tribunals
where a judge had a financial interest in the outcome of a
case, although the interest was less than what would have
been considered personal or direct at common law.
This was the problem addressed in Tumey. There, the
mayor of a village had the authority to sit as a judge (with
no jury) to try those accused of violating a state law pro­
hibiting the possession of alcoholic beverages. Inherent in
this structure were two potential conflicts. First, the
mayor received a salary supplement for performing judi­
cial duties, and the funds for that compensation derived
from the fines assessed in a case. No fines were assessed
upon acquittal. The mayor-judge thus received a salary
supplement only if he convicted the defendant. 273 U. S.,
at 520. Second, sums from the criminal fines were depos­
ited to the village’s general treasury fund for village im­
provements and repairs. Id., at 522.
The Court held that the Due Process Clause required
disqualification “both because of [the mayor-judge’s] direct
pecuniary interest in the outcome, and because of his
official motive to convict and to graduate the fine to help
the financial needs of the village.” Id., at 535. It so held
despite observing that “[t]here are doubtless mayors who
would not allow such a consideration as $12 costs in each
case to affect their judgment in it.” Id., at 532. The Court
articulated the controlling principle:
“Every procedure which would offer a possible temp­
tation to the average man as a judge to forget the
burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice,
clear and true between the State and the accused, de­
nies the latter due process of law.” Ibid.
The Court was thus concerned with more than the tradi­
tional common-law prohibition on direct pecuniary inter­
8 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

est. It was also concerned with a more general concept of
interests that tempt adjudicators to disregard neutrality.
This concern with conflicts resulting from financial
incentives was elaborated in Ward v. Monroeville, 409
U. S. 57 (1972), which invalidated a conviction in another
mayor’s court. In Monroeville, unlike in Tumey, the mayor
received no money; instead, the fines the mayor assessed
went to the town’s general fisc. The Court held that “[t]he
fact that the mayor [in Tumey] shared directly in the fees
and costs did not define the limits of the principle.” 409
U. S., at 60. The principle, instead, turned on the “ ‘possi­
ble temptation’ ” the mayor might face; the mayor’s “execu­
tive responsibilities for village finances may make him
partisan to maintain the high level of contribution [to
those finances] from the mayor’s court.” Ibid. As the
Court reiterated in another case that Term, “the [judge’s]
financial stake need not be as direct or positive as it ap­
peared to be in Tumey.” Gibson v. Berryhill, 411 U. S.
564, 579 (1973) (an administrative board composed of
optometrists had a pecuniary interest of “sufficient sub­
stance” so that it could not preside over a hearing against
competing optometrists).
The Court in Lavoie further clarified the reach of the
Due Process Clause regarding a judge’s financial interest
in a case. There, a justice had cast the deciding vote on
the Alabama Supreme Court to uphold a punitive dam­
ages award against an insurance company for bad-faith
refusal to pay a claim. At the time of his vote, the justice
was the lead plaintiff in a nearly identical lawsuit pending
in Alabama’s lower courts. His deciding vote, this Court
surmised, “undoubtedly ‘raised the stakes’ ” for the insur­
ance defendant in the justice’s suit. 475 U. S., at 823–824.
The Court stressed that it was “not required to decide
whether in fact [the justice] was influenced.” Id., at 825.
The proper constitutional inquiry is “whether sitting on
the case then before the Supreme Court of Alabama
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Opinion of the Court

‘ “would offer a possible temptation to the average . . .
judge to . . . lead him not to hold the balance nice, clear
and true.” ’ ” Ibid. (quoting Monroeville, supra, at 60, in
turn quoting Tumey, supra, at 532). The Court under­
scored that “what degree or kind of interest is sufficient to
disqualify a judge from sitting ‘cannot be defined with
precision.’ ” 475 U. S., at 822 (quoting Murchison, 349
U. S., at 136). In the Court’s view, however, it was impor­
tant that the test have an objective component.
The Lavoie Court proceeded to distinguish the state
court justice’s particular interest in the case, which re­
quired recusal, from interests that were not a constitu­
tional concern. For instance, “while [the other] justices
might conceivably have had a slight pecuniary interest”
due to their potential membership in a class-action suit
against their own insurance companies, that interest is
“ ‘too remote and insubstantial to violate the constitutional
constraints.’ ” 475 U. S., at 825–826 (quoting Marshall v.
Jerrico, Inc., 446 U. S. 238, 243 (1980)).
B
The second instance requiring recusal that was not
discussed at common law emerged in the criminal con­
tempt context, where a judge had no pecuniary interest in
the case but was challenged because of a conflict arising
from his participation in an earlier proceeding. This Court
characterized that first proceeding (perhaps pejoratively)
as a “ ‘one-man grand jury.’ ” Murchison, 349 U. S., at 133.
In that first proceeding, and as provided by state law, a
judge examined witnesses to determine whether criminal
charges should be brought. The judge called the two
petitioners before him. One petitioner answered ques­
tions, but the judge found him untruthful and charged him
with perjury. The second declined to answer on the
ground that he did not have counsel with him, as state law
seemed to permit. The judge charged him with contempt.
10 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

The judge proceeded to try and convict both petitioners.
Id., at 134–135.
This Court set aside the convictions on grounds that the
judge had a conflict of interest at the trial stage because of
his earlier participation followed by his decision to charge
them. The Due Process Clause required disqualification.
The Court recited the general rule that “no man can be a
judge in his own case,” adding that “no man is permitted
to try cases where he has an interest in the outcome.” Id.,
at 136. It noted that the disqualifying criteria “cannot be
defined with precision. Circumstances and relationships
must be considered.” Ibid. These circumstances and the
prior relationship required recusal: “Having been a part of
[the one-man grand jury] process a judge cannot be, in the
very nature of things, wholly disinterested in the convic­
tion or acquittal of those accused.” Id., at 137. That is
because “[a]s a practical matter it is difficult if not impos­
sible for a judge to free himself from the influence of what
took place in his ‘grand-jury’ secret session.” Id., at 138.
The Murchison Court was careful to distinguish the
circumstances and the relationship from those where the
Constitution would not require recusal. It noted that the
single-judge grand jury is “more a part of the accusatory
process than an ordinary lay grand juror,” and that “adju­
dication by a trial judge of a contempt committed in [a
judge’s] presence in open court cannot be likened to the
proceedings here.” Id., at 137. The judge’s prior relation­
ship with the defendant, as well as the information ac­
quired from the prior proceeding, was of critical import.
Following Murchison the Court held in Mayberry v.
Pennsylvania, 400 U. S. 455, 466 (1971), “that by reason of
the Due Process Clause of the Fourteenth Amendment a
defendant in criminal contempt proceedings should be
given a public trial before a judge other than the one
reviled by the contemnor.” The Court reiterated that this
rule rests on the relationship between the judge and the
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Opinion of the Court

defendant: “[A] judge, vilified as was this Pennsylvania
judge, necessarily becomes embroiled in a running, bitter
controversy. No one so cruelly slandered is likely to main­
tain that calm detachment necessary for fair adjudica­
tion.” Id., at 465.
Again, the Court considered the specific circumstances
presented by the case. It noted that “not every attack on a
judge . . . disqualifies him from sitting.” Ibid. The Court
distinguished the case from Ungar v. Sarafite, 376 U. S.
575 (1964), in which the Court had “ruled that a lawyer’s
challenge, though ‘disruptive, recalcitrant and disagree­
able commentary,’ was still not ‘an insulting attack upon
the integrity of the judge carrying such potential for bias
as to require disqualification.’ ” Mayberry, supra, at 465–
466 (quoting Ungar, supra, at 584). The inquiry is an
objective one. The Court asks not whether the judge is
actually, subjectively biased, but whether the average
judge in his position is “likely” to be neutral, or whether
there is an unconstitutional “potential for bias.”
III
Based on the principles described in these cases we turn
to the issue before us. This problem arises in the context
of judicial elections, a framework not presented in the
precedents we have reviewed and discussed.
Caperton contends that Blankenship’s pivotal role in
getting Justice Benjamin elected created a constitutionally
intolerable probability of actual bias. Though not a bribe
or criminal influence, Justice Benjamin would neverthe­
less feel a debt of gratitude to Blankenship for his ex­
traordinary efforts to get him elected. That temptation,
Caperton claims, is as strong and inherent in human
nature as was the conflict the Court confronted in Tumey
and Monroeville when a mayor-judge (or the city) bene­
fited financially from a defendant’s conviction, as well as
the conflict identified in Murchison and Mayberry when a
12 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

judge was the object of a defendant’s contempt.
Justice Benjamin was careful to address the recusal
motions and explain his reasons why, on his view of the
controlling standard, disqualification was not in order. In
four separate opinions issued during the course of the
appeal, he explained why no actual bias had been estab­
lished. He found no basis for recusal because Caperton
failed to provide “objective evidence” or “objective informa­
tion,” but merely “subjective belief” of bias. ___ W. Va., at
___, ___–___, ___ S. E. 2d, at ___, ___–___; App. 336a,
337a–338a, 444a–445a. Nor could anyone “point to any
actual conduct or activity on [his] part which could be
termed ‘improper.’ ” ___ W. Va., at ___–___, ___ S. E. 2d, at
___–___; App. 655a–656a. In other words, based on the
facts presented by Caperton, Justice Benjamin conducted
a probing search into his actual motives and inclinations;
and he found none to be improper. We do not question his
subjective findings of impartiality and propriety. Nor do
we determine whether there was actual bias.
Following accepted principles of our legal tradition
respecting the proper performance of judicial functions,
judges often inquire into their subjective motives and
purposes in the ordinary course of deciding a case. This
does not mean the inquiry is a simple one. “The work of
deciding cases goes on every day in hundreds of courts
throughout the land. Any judge, one might suppose,
would find it easy to describe the process which he had
followed a thousand times and more. Nothing could be
farther from the truth.” B. Cardozo, The Nature of the
Judicial Process 9 (1921).
The judge inquires into reasons that seem to be leading
to a particular result. Precedent and stare decisis and the
text and purpose of the law and the Constitution; logic and
scholarship and experience and common sense; and fair­
ness and disinterest and neutrality are among the factors
at work. To bring coherence to the process, and to seek
 Cite as: 556 U. S. ____ (2009) 13

Opinion of the Court

respect for the resulting judgment, judges often explain
the reasons for their conclusions and rulings. There are
instances when the introspection that often attends this
process may reveal that what the judge had assumed to be
a proper, controlling factor is not the real one at work. If
the judge discovers that some personal bias or improper
consideration seems to be the actuating cause of the deci­
sion or to be an influence so difficult to dispel that there is
a real possibility of undermining neutrality, the judge may
think it necessary to consider withdrawing from the case.
The difficulties of inquiring into actual bias, and the fact
that the inquiry is often a private one, simply underscore
the need for objective rules. Otherwise there may be no
adequate protection against a judge who simply misreads
or misapprehends the real motives at work in deciding the
case. The judge’s own inquiry into actual bias, then, is not
one that the law can easily superintend or review, though
actual bias, if disclosed, no doubt would be grounds for
appropriate relief. In lieu of exclusive reliance on that
personal inquiry, or on appellate review of the judge’s
determination respecting actual bias, the Due Process
Clause has been implemented by objective standards that
do not require proof of actual bias. See Tumey, 273 U. S.,
at 532; Mayberry, 400 U. S., at 465–466; Lavoie, 475 U. S.,
at 825. In defining these standards the Court has asked
whether, “under a realistic appraisal of psychological
tendencies and human weakness,” the interest “poses such
a risk of actual bias or prejudgment that the practice must
be forbidden if the guarantee of due process is to be ade­
quately implemented.” Withrow, 421 U. S., at 47.
We turn to the influence at issue in this case. Not every
campaign contribution by a litigant or attorney creates a
probability of bias that requires a judge’s recusal, but this
is an exceptional case. Cf. Mayberry, supra, at 465 (“It is,
of course, not every attack on a judge that disqualifies him
from sitting”); Lavoie, supra, at 825–826 (some pecuniary
14 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

interests are “ ‘too remote and insubstantial’ ”). We con­
clude that there is a serious risk of actual bias—based on
objective and reasonable perceptions—when a person with
a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the case
by raising funds or directing the judge’s election campaign
when the case was pending or imminent. The inquiry
centers on the contribution’s relative size in comparison to
the total amount of money contributed to the campaign,
the total amount spent in the election, and the apparent
effect such contribution had on the outcome of the election.
Applying this principle, we conclude that Blankenship’s
campaign efforts had a significant and disproportionate
influence in placing Justice Benjamin on the case.
Blankenship contributed some $3 million to unseat the
incumbent and replace him with Benjamin. His contribu­
tions eclipsed the total amount spent by all other Benja­
min supporters and exceeded by 300% the amount spent
by Benjamin’s campaign committee. App. 288a. Caperton
claims Blankenship spent $1 million more than the total
amount spent by the campaign committees of both candi­
dates combined. Brief for Petitioners 28.
Massey responds that Blankenship’s support, while
significant, did not cause Benjamin’s victory. In the end
the people of West Virginia elected him, and they did so
based on many reasons other than Blankenship’s efforts.
Massey points out that every major state newspaper, but
one, endorsed Benjamin. Brief for Respondents 54. It also
contends that then-Justice McGraw cost himself the elec­
tion by giving a speech during the campaign, a speech the
opposition seized upon for its own advantage. Ibid.
Justice Benjamin raised similar arguments. He as­
serted that “the outcome of the 2004 election was due
primarily to [his own] campaign’s message,” as well as
McGraw’s “devastat[ing]” speech in which he “made a
number of controversial claims which became a matter of
 Cite as: 556 U. S. ____ (2009) 15

Opinion of the Court

statewide discussion in the media, on the internet, and
elsewhere.” ___ W. Va., at ___, and n. 29, ___ S. E. 2d, at
___, and n. 29; App. 673a, 674a, and n. 29; see also ___
W. Va., at ___–___, and nn. 35–39, ___ S. E. 2d, at ___–___,
and nn. 35–39; App. 677a–680a, and nn. 35–39.
Whether Blankenship’s campaign contributions were a
necessary and sufficient cause of Benjamin’s victory is not
the proper inquiry. Much like determining whether a
judge is actually biased, proving what ultimately drives
the electorate to choose a particular candidate is a difficult
endeavor, not likely to lend itself to a certain conclusion.
This is particularly true where, as here, there is no proce­
dure for judicial factfinding and the sole trier of fact is the
one accused of bias. Due process requires an objective
inquiry into whether the contributor’s influence on the
election under all the circumstances “would offer a possi­
ble temptation to the average . . . judge to . . . lead him not
to hold the balance nice, clear and true.” Tumey, supra, at
532. In an election decided by fewer than 50,000 votes
(382,036 to 334,301), see ___ W. Va., at ___, ___ S. E. 2d, at
___; App. 677a, Blankenship’s campaign contributions—in
comparison to the total amount contributed to the cam­
paign, as well as the total amount spent in the election—
had a significant and disproportionate influence on the
electoral outcome. And the risk that Blankenship’s influ­
ence engendered actual bias is sufficiently substantial that
it “must be forbidden if the guarantee of due process is to
be adequately implemented.” Withrow, supra, at 47.
The temporal relationship between the campaign con­
tributions, the justice’s election, and the pendency of the
case is also critical. It was reasonably foreseeable, when
the campaign contributions were made, that the pending
case would be before the newly elected justice. The $50
million adverse jury verdict had been entered before the
election, and the Supreme Court of Appeals was the next
step once the state trial court dealt with post-trial mo­
16 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

tions. So it became at once apparent that, absent recusal,
Justice Benjamin would review a judgment that cost his
biggest donor’s company $50 million. Although there is no
allegation of a quid pro quo agreement, the fact remains
that Blankenship’s extraordinary contributions were made
at a time when he had a vested stake in the outcome. Just
as no man is allowed to be a judge in his own cause, simi­
lar fears of bias can arise when—without the consent of
the other parties—a man chooses the judge in his own
cause. And applying this principle to the judicial election
process, there was here a serious, objective risk of actual
bias that required Justice Benjamin’s recusal.
Justice Benjamin did undertake an extensive search for
actual bias. But, as we have indicated, that is just one
step in the judicial process; objective standards may also
require recusal whether or not actual bias exists or can be
proved. Due process “may sometimes bar trial by judges
who have no actual bias and who would do their very best
to weigh the scales of justice equally between contending
parties.” Murchison, 349 U. S., at 136. The failure to
consider objective standards requiring recusal is not con­
sistent with the imperatives of due process. We find that
Blankenship’s significant and disproportionate influence—
coupled with the temporal relationship between the elec­
tion and the pending case—“ ‘ “offer a possible temptation
to the average . . . judge to . . . lead him not to hold the
balance nice, clear and true.” ’ ” Lavoie, 475 U. S., at 825
(quoting Monroeville, 409 U. S., at 60, in turn quoting
Tumey, 273 U. S., at 532). On these extreme facts the
probability of actual bias rises to an unconstitutional level.
IV
Our decision today addresses an extraordinary situation
where the Constitution requires recusal. Massey and its
amici predict that various adverse consequences will
follow from recognizing a constitutional violation here—
 Cite as: 556 U. S. ____ (2009) 17

Opinion of the Court

ranging from a flood of recusal motions to unnecessary
interference with judicial elections. We disagree. The
facts now before us are extreme by any measure. The
parties point to no other instance involving judicial cam­
paign contributions that presents a potential for bias
comparable to the circumstances in this case.
It is true that extreme cases often test the bounds of
established legal principles, and sometimes no adminis­
trable standard may be available to address the perceived
wrong. But it is also true that extreme cases are more
likely to cross constitutional limits, requiring this Court’s
intervention and formulation of objective standards. This
is particularly true when due process is violated. See, e.g.,
County of Sacramento v. Lewis, 523 U. S. 833, 846–847
(1998) (reiterating the due-process prohibition on “execu­
tive abuse of power . . . which shocks the conscience”); id.,
at 858 (KENNEDY, J., concurring) (explaining that “objec­
tive considerations, including history and precedent, are
the controlling principle” of this due process standard).
This Court’s recusal cases are illustrative. In each case
the Court dealt with extreme facts that created an uncon­
stitutional probability of bias that “ ‘cannot be defined with
precision.’ ” Lavoie, 475 U. S., at 822 (quoting Murchison,
349 U. S., at 136). Yet the Court articulated an objective
standard to protect the parties’ basic right to a fair trial in
a fair tribunal. The Court was careful to distinguish the
extreme facts of the cases before it from those interests
that would not rise to a constitutional level. See, e.g.,
Lavoie, supra, at 825–826; Mayberry, 400 U. S., at 465–
466; Murchison, supra, at 137; see also Part II, supra. In
this case we do nothing more than what the Court has
done before.
As such, it is worth noting the effects, or lack thereof, of
the Court’s prior decisions. Even though the standards
announced in those cases raised questions similar to those
that might be asked after our decision today, the Court
18 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

was not flooded with Monroeville or Murchison motions.
That is perhaps due in part to the extreme facts those
standards sought to address. Courts proved quite capable
of applying the standards to less extreme situations.
One must also take into account the judicial reforms the
States have implemented to eliminate even the appear­
ance of partiality. Almost every State—West Virginia
included—has adopted the American Bar Association’s
objective standard: “A judge shall avoid impropriety and
the appearance of impropriety.” ABA Annotated Model
Code of Judicial Conduct, Canon 2 (2004); see Brief for
American Bar Association as Amicus Curiae 14, and n. 29.
The ABA Model Code’s test for appearance of impropriety
is “whether the conduct would create in reasonable minds
a perception that the judge’s ability to carry out judicial
responsibilities with integrity, impartiality and compe­
tence is impaired.” Canon 2A, Commentary; see also
W. Va. Code of Judicial Conduct, Canon 2A, and Commen­
tary (2009) (same).
The West Virginia Code of Judicial Conduct also re­
quires a judge to “disqualify himself or herself in a pro­
ceeding in which the judge’s impartiality might reasonably
be questioned.” Canon 3E(1); see also 28 U. S. C. §455(a)
(“Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned”). Under
Canon 3E(1), “ ‘[t]he question of disqualification focuses on
whether an objective assessment of the judge’s conduct
produces a reasonable question about impartiality, not on
the judge’s subjective perception of the ability to act
fairly.’ ” State ex rel. Brown v. Dietrick, 191 W. Va. 169,
174, n. 9, 444 S. E. 2d 47, 52, n. 9 (1994); see also Liteky v.
United States, 510 U. S. 540, 558 (1994) (KENNEDY, J.,
concurring in judgment) (“[U]nder [28 U. S. C.] §455(a), a
judge should be disqualified only if it appears that he or
she harbors an aversion, hostility or disposition of a kind
 Cite as: 556 U. S. ____ (2009) 19

Opinion of the Court

that a fair-minded person could not set aside when judging
the dispute”). Indeed, some States require recusal based
on campaign contributions similar to those in this case.
See, e.g., Ala. Code §§12–24–1, 12–24–2 (2006); Miss. Code
of Judicial Conduct, Canon 3E(2) (2008).
These codes of conduct serve to maintain the integrity of
the judiciary and the rule of law. The Conference of the
Chief Justices has underscored that the codes are “[t]he
principal safeguard against judicial campaign abuses” that
threaten to imperil “public confidence in the fairness and
integrity of the nation’s elected judges.” Brief for Confer­
ence of Chief Justices as Amicus Curiae 4, 11. This is a
vital state interest:
“Courts, in our system, elaborate principles of law in
the course of resolving disputes. The power and the
prerogative of a court to perform this function rest, in
the end, upon the respect accorded to its judgments.
The citizen’s respect for judgments depends in turn
upon the issuing court’s absolute probity. Judicial in­
tegrity is, in consequence, a state interest of the high­
est order.” Republican Party of Minn. v. White, 536
U. S. 765, 793 (2002) (KENNEDY, J., concurring).
It is for this reason that States may choose to “adopt
recusal standards more rigorous than due process re­
quires.” Id., at 794; see also Bracy v. Gramley, 520 U. S.
899, 904 (1997) (distinguishing the “constitutional floor”
from the ceiling set “by common law, statute, or the pro­
fessional standards of the bench and bar”).
“The Due Process Clause demarks only the outer
boundaries of judicial disqualifications. Congress and the
states, of course, remain free to impose more rigorous
standards for judicial disqualification than those we find
mandated here today.” Lavoie, supra, at 828. Because the
codes of judicial conduct provide more protection than due
process requires, most disputes over disqualification will
20 CAPERTON v. A. T. MASSEY COAL CO.

Opinion of the Court

be resolved without resort to the Constitution. Applica­
tion of the constitutional standard implicated in this case
will thus be confined to rare instances.
* * *
The judgment of the Supreme Court of Appeals of West
Virginia is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

It is so ordered.
 Cite as: 556 U. S. ____ (2009) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–22
_________________

HUGH M. CAPERTON, ET AL., PETITIONERS v.
A. T. MASSEY COAL COMPANY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

APPEALS OF WEST VIRGINIA

[June 8, 2009]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
I, of course, share the majority’s sincere concerns about
the need to maintain a fair, independent, and impartial
judiciary—and one that appears to be such. But I fear
that the Court’s decision will undermine rather than
promote these values.
Until today, we have recognized exactly two situations
in which the Federal Due Process Clause requires dis­
qualification of a judge: when the judge has a financial
interest in the outcome of the case, and when the judge is
trying a defendant for certain criminal contempts. Vaguer
notions of bias or the appearance of bias were never a
basis for disqualification, either at common law or under
our constitutional precedents. Those issues were instead
addressed by legislation or court rules.
Today, however, the Court enlists the Due Process
Clause to overturn a judge’s failure to recuse because of a
“probability of bias.” Unlike the established grounds for
disqualification, a “probability of bias” cannot be defined
in any limited way. The Court’s new “rule” provides no
guidance to judges and litigants about when recusal will
be constitutionally required. This will inevitably lead to
an increase in allegations that judges are biased, however
groundless those charges may be. The end result will do
2 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

far more to erode public confidence in judicial impartiality
than an isolated failure to recuse in a particular case.
I
There is a “presumption of honesty and integrity in
those serving as adjudicators.” Withrow v. Larkin, 421
U. S. 35, 47 (1975). All judges take an oath to uphold the
Constitution and apply the law impartially, and we trust
that they will live up to this promise. See Republican
Party of Minn. v. White, 536 U. S. 765, 796 (2002)
(KENNEDY, J., concurring) (“We should not, even by inad­
vertence, ‘impute to judges a lack of firmness, wisdom, or
honor’ ” (quoting Bridges v. California, 314 U. S. 252, 273
(1941))). We have thus identified only two situations in
which the Due Process Clause requires disqualification of
a judge: when the judge has a financial interest in the
outcome of the case, and when the judge is presiding over
certain types of criminal contempt proceedings.
It is well established that a judge may not preside over a
case in which he has a “direct, personal, substantial pecu­
niary interest.” Tumey v. Ohio, 273 U. S. 510, 523 (1927).
This principle is relatively straightforward, and largely
tracks the longstanding common-law rule regarding judi­
cial recusal. See Frank, Disqualification of Judges, 56
Yale L. J. 605, 609 (1947) (“The common law of disqualifi­
cation . . . was clear and simple: a judge was disqualified
for direct pecuniary interest and for nothing else”). For
example, a defendant’s due process rights are violated
when he is tried before a judge who is “paid for his service
only when he convicts the defendant.” Tumey, supra, at
531; see also Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813,
824 (1986) (recusal required when the judge’s decision in a
related case “had the clear and immediate effect of en­
hancing both the legal status and the settlement value of
his own case”); Connally v. Georgia, 429 U. S. 245, 250
(1977) (per curiam).
 Cite as: 556 U. S. ____ (2009) 3

ROBERTS, C. J., dissenting

It may also violate due process when a judge presides
over a criminal contempt case that resulted from the
defendant’s hostility towards the judge. In Mayberry v.
Pennsylvania, 400 U. S. 455 (1971), the defendant directed
a steady stream of expletives and ad hominem attacks at
the judge throughout the trial. When that defendant was
subsequently charged with criminal contempt, we con­
cluded that he “should be given a public trial before a
judge other than the one reviled by the contemnor.” Id., at
466; see also Taylor v. Hayes, 418 U. S. 488, 501 (1974) (a
judge who had “become embroiled in a running contro­
versy” with the defendant could not subsequently preside
over that defendant’s criminal contempt trial).
Our decisions in this area have also emphasized when
the Due Process Clause does not require recusal:
“All questions of judicial qualification may not involve
constitutional validity. Thus matters of kinship, per­
sonal bias, state policy, remoteness of interest, would
seem generally to be matters merely of legislative dis­
cretion.” Tumey, supra, at 523; see also Lavoie, supra,
at 820.
Subject to the two well-established exceptions described
above, questions of judicial recusal are regulated by
“common law, statute, or the professional standards of the
bench and bar.” Bracy v. Gramley, 520 U. S. 899, 904
(1997).
In any given case, there are a number of factors that
could give rise to a “probability” or “appearance” of bias:
friendship with a party or lawyer, prior employment ex­
perience, membership in clubs or associations, prior
speeches and writings, religious affiliation, and countless
other considerations. We have never held that the Due
Process Clause requires recusal for any of these reasons,
even though they could be viewed as presenting a “prob­
ability of bias.” Many state statutes require recusal based
4 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

on a probability or appearance of bias, but “that alone
would not be sufficient basis for imposing a constitutional
requirement under the Due Process Clause.” Lavoie,
supra, at 820 (emphasis added). States are, of course, free
to adopt broader recusal rules than the Constitution re­
quires—and every State has—but these developments are
not continuously incorporated into the Due Process
Clause.
II
In departing from this clear line between when recusal
is constitutionally required and when it is not, the major­
ity repeatedly emphasizes the need for an “objective”
standard. Ante, at 1, 6, 9, 11–18. The majority’s analysis
is “objective” in that it does not inquire into Justice Ben­
jamin’s motives or decisionmaking process. But the stan­
dard the majority articulates—“probability of bias”—fails
to provide clear, workable guidance for future cases. At
the most basic level, it is unclear whether the new prob­
ability of bias standard is somehow limited to financial
support in judicial elections, or applies to judicial recusal
questions more generally.
But there are other fundamental questions as well.
With little help from the majority, courts will now have to
determine:

1. How much money is too much money? hat level of
W
contribution or expenditure gives rise to a “probability
of bias”?

2. How do we determine whether a given expenditure is
“disproportionate”? Disproportionate to what?

3. Are independent, non-coordinated expenditures treated
the same as direct contributions to a candidate’s cam­
paign? What about contributions to independent out­
 Cite as: 556 U. S. ____ (2009) 5

ROBERTS, C. J., dissenting

side groups supporting a candidate?

4. Does it matter whether the litigant has contributed to
other candidates or made large expenditures in con­
nection with other elections?

5. Does the amount at issue in the case matter? hat if
W
this case were an employment dispute with only
$10,000 at stake? What if the plaintiffs only sought
non-monetary relief such as an injunction or declara­
tory judgment?

6. Does the analysis change depending on whether the
judge whose disqualification is sought sits on a trial
court, appeals court, or state supreme court?

7. How long does the probability of bias last? Does the

probability of bias diminish over time as the election
recedes? Does it matter whether the judge plans to
run for reelection?

8. What if the “disproportionately” large expenditure is
made by an industry association, trade union, physi­
cians’ group, or the plaintiffs’ bar? Must the judge
recuse in all cases that affect the association’s inter­
ests? Must the judge recuse in all cases in which a
party or lawyer is a member of that group? Does it
matter how much the litigant contributed to the asso­
ciation?

9. What if the case involves a social or ideological issue
rather than a financial one? Must a judge recuse from
cases involving, say, abortion rights if he has received
“disproportionate” support from individuals who feel
strongly about either side of that issue? If the sup­
porter wants to help elect judges who are “tough on
6 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

crime,” must the judge recuse in all criminal cases?

10. What if the candidate draws “disproportionate” sup­
port from a particular racial, religious, ethnic, or other
group, and the case involves an issue of particular im­
portance to that group?

11. What if the supporter is not a party to the pending or
imminent case, but his interests will be affected by the
decision? Does the Court’s analysis apply if the sup­
porter “chooses the judge” not in his case, but in some­
one else’s?

12. What if the case implicates a regulatory issue that is of
great importance to the party making the expendi­
tures, even though he has no direct financial interest
in the outcome (e.g., a facial challenge to an agency
rulemaking or a suit seeking to limit an agency’s juris­
diction)?

13. Must the judge’s vote be outcome determinative in
order for his non-recusal to constitute a due process
violation?

14. Does the due process analysis consider the underlying
merits of the suit? Does it matter whether the decision
is clearly right (or wrong) as a matter of state law?

15. What if a lower court decision in favor of the supporter
is affirmed on the merits on appeal, by a panel with no
“debt of gratitude” to the supporter? Does that “moot”
the due process claim?

16. What if the judge voted against the supporter in many
other cases?
 Cite as: 556 U. S. ____ (2009) 7

ROBERTS, C. J., dissenting

17. What if the judge disagrees with the supporter’s mes­
sage or tactics? What if the judge expressly disclaims
the support of this person?

18. Should we assume that elected judges feel a “debt of
hostility” towards major opponents of their candida­
cies? Must the judge recuse in cases involving indi­
viduals or groups who spent large amounts of money
trying unsuccessfully to defeat him?

19. If there is independent review of a judge’s recusal
decision, e.g., by a panel of other judges, does this com­
pletely foreclose a due process claim?

20. Does a debt of gratitude for endorsements by newspa­
pers, interest groups, politicians, or celebrities also
give rise to a constitutionally unacceptable probability
of bias? How would we measure whether such support
is disproportionate?

21. Does close personal friendship between a judge and a
party or lawyer now give rise to a probability of bias?

22. Does it matter whether the campaign expenditures
come from a party or the party’s attorney? If from a
lawyer, must the judge recuse in every case involving
that attorney?

23. Does what is unconstitutional vary from State o t
State? What if particular States have a history of ex­
pensive judicial elections?

24. Under the majority’s “objective” test, do we analyze the
due process issue through the lens of a reasonable per­
son, a reasonable lawyer, or a reasonable judge?
8 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

25. What role does causation play in this analysis? The
Court sends conflicting signals on this point. The ma­
jority asserts that “[w]hether Blankenship’s campaign
contributions were a necessary and sufficient cause of
Benjamin’s victory is not the proper inquiry.” Ante, at
15. But elsewhere in the opinion, the majority consid­
ers “the apparent effect such contribution had on the
outcome of the election,” ante, at 14, and whether the
litigant has been able to “choos[e] the judge in his own
cause,” ante, at 16. If causation is a pertinent factor,
how do we know whether the contribution or expendi­
ture had any effect on the outcome of the election?
What if the judge won in a landslide? What if the
judge won primarily because of his opponent’s mis­
steps?

26. Is the due process analysis less probing for incumbent
judges—who typically have a great advantage in elec­
tions—than for challengers?

27. How final must the pending case be with respect to the
contributor’s interest? What if, for example, the only
issue on appeal is whether the court should certify a
class of plaintiffs? Is recusal required just as if the is­
sue in the pending case were ultimate liability?

28. Which cases are implicated by this doctrine? ust the
M
case be pending at the time of the election? Reasona­
bly likely to be brought? What about an important but
unanticipated case filed shortly after the election?

29. When do we impute a probability of bias from one
party to another? Does a contribution from a corpora­
tion get imputed to its executives, and vice-versa?
Does a contribution or expenditure by one family
member get imputed to other family members?
 Cite as: 556 U. S. ____ (2009) 9

ROBERTS, C. J., dissenting

30. What if the election is nonpartisan? hat if the elec­
W
tion is just a yes-or-no vote about whether to retain an
incumbent?

31. What type of support is disqualifying? hat if the
W
supporter’s expenditures are used to fund voter regis­
tration or get-out-the-vote efforts rather than televi­
sion advertisements?

32. Are contributions or expenditures in connection with a
primary aggregated with those in the general election?
What if the contributor supported a different candidate
in the primary? Does that dilute the debt of gratitude?

33. What procedures must be followed to challenge a state
judge’s failure to recuse? May Caperton claims only be
raised on direct review? Or may such claims also be
brought in federal district court under 42 U. S. C.
§1983, which allows a person deprived of a federal
right by a state official to sue for damages? If §1983
claims are available, who are the proper defendants?
The judge? The whole court? The clerk of court?

34. What about state-court cases that are already closed?
Can the losing parties in those cases now seek collat­
eral relief in federal district court under §1983? What
statutes of limitation should be applied to such suits?

35. What is the proper remedy? After a successful Caper
ton motion, must the parties start from scratch before
the lower courts? Is any part of the lower court judg­
ment retained?

36. Does a litigant waive his due process claim if he waits
until after decision to raise it? Or would the claim only
10 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

be ripe after decision, when the judge’s actions or vote
suggest a probability of bias?

37. Are the parties entitled to discovery with respect to the
judge’s recusal decision?

38. If a judge erroneously fails to recuse, do we apply
harmless-error review?

39. Does the judge get to respond to the allegation that he
is probably biased, or is his reputation solely in the
hands of the parties to the case?

40. What if the parties settle a Caperton claim as part of a
broader settlement of the case? Does that leave the
judge with no way to salvage his reputation?

These are only a few uncertainties that quickly come to
mind. Judges and litigants will surely encounter others
when they are forced to, or wish to, apply the majority’s
decision in different circumstances. Today’s opinion re­
quires state and federal judges simultaneously to act as
political scientists (why did candidate X win the election?),
economists (was the financial support disproportionate?),
and psychologists (is there likely to be a debt of grati­
tude?).
The Court’s inability to formulate a “judicially discerni­
ble and manageable standard” strongly counsels against
the recognition of a novel constitutional right. See Vieth v.
Jubelirer, 541 U. S. 267, 306 (2004) (plurality opinion)
(holding political gerrymandering claims nonjusticiable
based on the lack of workable standards); id., at 317
(KENNEDY, J., concurring in judgment) (“The failings of
the many proposed standards for measuring the burden a
gerrymander imposes . . . make our intervention im­
proper”). The need to consider these and countless other
 Cite as: 556 U. S. ____ (2009) 11

ROBERTS, C. J., dissenting

questions helps explain why the common law and this
Court’s constitutional jurisprudence have never required
disqualification on such vague grounds as “probability” or
“appearance” of bias.
III

A

To its credit, the Court seems to recognize that the
inherently boundless nature of its new rule poses a prob­
lem. But the majority’s only answer is that the present
case is an “extreme” one, so there is no need to worry
about other cases. Ante, at 17. The Court repeats this
point over and over. See ante, at 13 (“this is an excep­
tional case”); ante, at 16 (“On these extreme facts”); ibid.
(“Our decision today addresses an extraordinary situa­
tion”); ante, at 17 (“The facts now before us are extreme by
any measure”); ante, at 20 (Court’s rule will “be confined
to rare instances”).
But this is just so much whistling past the graveyard.
Claims that have little chance of success are nonetheless
frequently filed. The success rate for certiorari petitions
before this Court is approximately 1.1%, and yet the pre­
vious Term some 8,241 were filed. Every one of the “Ca
perton motions” or appeals or §1983 actions will claim that
the judge is biased, or probably biased, bringing the judge
and the judicial system into disrepute. And all future
litigants will assert that their case is really the most
extreme thus far.
Extreme cases often test the bounds of established legal
principles. There is a cost to yielding to the desire to
correct the extreme case, rather than adhering to the legal
principle. That cost has been demonstrated so often that
it is captured in a legal aphorism: “Hard cases make bad
law.”
Consider the cautionary tale of our decisions in United
States v. Halper, 490 U. S. 435 (1989), and Hudson v.
12 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

United States, 522 U. S. 93 (1997). Historically, we have
held that the Double Jeopardy Clause only applies to
criminal penalties, not civil ones. See, e.g., Helvering v.
Mitchell, 303 U. S. 391, 398–400 (1938). But in Halper,
the Court held that a civil penalty could violate the Clause
if it were “overwhelmingly disproportionate to the dam­
ages [the defendant] has caused” and resulted in a “clear
injustice.” 490 U. S., at 446, 449. We acknowledged that
this inquiry would not be an “exact pursuit,” but the Court
assured litigants that it was only announcing “a rule for
the rare case, the case such as the one before us.” Id., at
449; see also id., at 453 (KENNEDY, J., concurring) (“To­
day’s holding, I would stress, constitutes an objective rule
that is grounded in the nature of the sanction and the
facts of the particular case”).
Just eight years later, we granted certiorari in Hudson
“because of concerns about the wide variety of novel dou­
ble jeopardy claims spawned in the wake of Halper.” 522
U. S., at 98; see also ibid., n. 4. The novel claim that we
had recognized in Halper turned out not to be so “rare”
after all, and the test we adopted in that case—
“overwhelmingly disproportionate”—had “proved unwork­
able.” Id., at 101–102 (internal quotation marks omitted).
We thus abandoned the Halper rule, ruing our “ill consid­
ered” “deviation from longstanding double jeopardy prin­
ciples.” Id., at 101.
The déjà vu is enough to make one swoon. Today, the
majority again departs from a clear, longstanding consti­
tutional rule to accommodate an “extreme” case involving
“grossly disproportionate” amounts of money. I believe we
will come to regret this decision as well, when courts are
forced to deal with a wide variety of Caperton motions,
each claiming the title of “most extreme” or “most dispro­
portionate.”
 Cite as: 556 U. S. ____ (2009)
13

ROBERTS, C. J., dissenting

B

And why is the Court so convinced that this is an ex­
treme case? It is true that Don Blankenship spent a large
amount of money in connection with this election. But
this point cannot be emphasized strongly enough: Other
than a $1,000 direct contribution from Blankenship, Jus
tice Benjamin and his campaign had no control over how
this money was spent. Campaigns go to great lengths to
develop precise messages and strategies. An insensitive or
ham-handed ad campaign by an independent third party
might distort the campaign’s message or cause a backlash
against the candidate, even though the candidate was not
responsible for the ads. See Buckley v. Valeo, 424 U. S. 1,
47 (1976) (per curiam) (“Unlike contributions, such inde­
pendent expenditures may well provide little assistance to
the candidate’s campaign and indeed may prove counter­
productive”); see also Brief for Conference of Chief Justices
as Amicus Curiae 27, n. 50 (citing examples of judicial
elections in which independent expenditures backfired and
hurt the candidate’s campaign). The majority repeatedly
characterizes Blankenship’s spending as “contributions” or
“campaign contributions,” ante, at 1, 3, 14–17, 19, but it is
more accurate to refer to them as “independent expendi­
tures.” Blankenship only “contributed” $1,000 to the
Benjamin campaign.
Moreover, Blankenship’s independent expenditures do
not appear “grossly disproportionate” compared to other
such expenditures in this very election. “And for the Sake
of the Kids”—an independent group that received ap­
proximately two-thirds of its funding from Blankenship—
spent $3,623,500 in connection with the election. App.
684a. But large independent expenditures were also made
in support of Justice Benjamin’s opponent. “Consumers
for Justice”—an independent group that received large
contributions from the plaintiffs’ bar—spent approxi­
mately $2 million in this race. Id., at 682a–683a, n. 41.
14 CAPERTON v. A. T. MASSEY COAL CO.

ROBERTS, C. J., dissenting

And Blankenship has made large expenditures in connec­
tion with several previous West Virginia elections, which
undercuts any notion that his involvement in this election
was “intended to influence the outcome” of particular
pending litigation. Brief for Petitioners 29.
It is also far from clear that Blankenship’s expenditures
affected the outcome of this election. Justice Benjamin
won by a comfortable 7-point margin (53.3% to 46.7%).
Many observers believed that Justice Benjamin’s opponent
doomed his candidacy by giving a well-publicized speech
that made several curious allegations; this speech was
described in the local media as “deeply disturbing” and
worse. App. 679a, n. 38. Justice Benjamin’s opponent also
refused to give interviews or participate in debates. All
but one of the major West Virginia newspapers endorsed
Justice Benjamin. Justice Benjamin just might have won
because the voters of West Virginia thought he would be a
better judge than his opponent. Unlike the majority, I
cannot say with any degree of certainty that Blankenship
“cho[se] the judge in his own cause.” Ante, at 16. I would
give the voters of West Virginia more credit than that.
* * *
It is an old cliché, but sometimes the cure is worse than
the disease. I am sure there are cases where a “probabil­
ity of bias” should lead the prudent judge to step aside, but
the judge fails to do so. Maybe this is one of them. But I
believe that opening the door to recusal claims under the
Due Process Clause, for an amorphous “probability of
bias,” will itself bring our judicial system into undeserved
disrepute, and diminish the confidence of the American
people in the fairness and integrity of their courts. I hope
I am wrong.
I respectfully dissent.
 Cite as: 556 U. S. ____ (2009) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–22
_________________

HUGH M. CAPERTON, ET AL., PETITIONERS v.
A. T. MASSEY COAL COMPANY, INC., ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

APPEALS OF WEST VIRGINIA

[June 8, 2009]

JUSTICE SCALIA, dissenting.
The principal purpose of this Court’s exercise of its
certiorari jurisdiction is to clarify the law. See this Court’s
Rule 10. As THE CHIEF JUSTICE’s dissent makes painfully
clear, the principal consequence of today’s decision is to
create vast uncertainty with respect to a point of law that
can be raised in all litigated cases in (at least) those 39
States that elect their judges. This course was urged upon
us on grounds that it would preserve the public’s confi
dence in the judicial system. Brief for Petitioners 16.
The decision will have the opposite effect. What above
all else is eroding public confidence in the Nation’s judicial
system is the perception that litigation is just a game, that
the party with the most resourceful lawyer can play it to
win, that our seemingly interminable legal proceedings
are wonderfully self-perpetuating but incapable of deliver
ing real-world justice. The Court’s opinion will reinforce
that perception, adding to the vast arsenal of lawyerly
gambits what will come to be known as the Caperton
claim. The facts relevant to adjudicating it will have to be
litigated—and likewise the law governing it, which will be
indeterminate for years to come, if not forever. Many
billable hours will be spent in poring through volumes of
campaign finance reports, and many more in contesting
nonrecusal decisions through every available means.
2 CAPERTON v. A. T. MASSEY COAL CO.

SCALIA, J., dissenting

A Talmudic maxim instructs with respect to the Scrip
ture: “Turn it over, and turn it over, for all is therein.”
The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah
22 (I. Epstein ed. 1935). Divinely inspired text may con
tain the answers to all earthly questions, but the Due
Process Clause most assuredly does not. The Court today
continues its quixotic quest to right all wrongs and repair
all imperfections through the Constitution. Alas, the
quest cannot succeed—which is why some wrongs and
imperfections have been called nonjusticiable. In the best
of all possible worlds, should judges sometimes recuse
even where the clear commands of our prior due process
law do not require it? Undoubtedly. The relevant ques
tion, however, is whether we do more good than harm by
seeking to correct this imperfection through expansion of
our constitutional mandate in a manner ungoverned by
any discernable rule. The answer is obvious.