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Cardozo Public Law, Policy & Ethics Journal


Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a judge sitting on the case of his largest campaign contributor.

The lower courts have thus far risen to the standard Caperton set. Several state courts are in the process of amending their recusal procedures to allow for full court review rather than relying on decisions only by the challenged judge himself or herself. Both the state and lower federal courts applying the decision have engaged in deeper, more candid assessments of a judge’s ability to be fair. There are instances in which the decision has been used as a backstop to prevent a judge from imposing a political agenda.

With that said, the Supreme Court itself now needs to follow suit. The Court itself should shift to full Court review of disqualification motions, and it should apply the Caperton standard without its traditional consideration of the numerical balance on the Court. Just as importantly, it is time for the justices to end their participation in blatantly political activities that are prohibited for every other judge in the land, for the message it sends both the lower courts and the public about judicial impartiality.

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Yeshiva University Benjamin N. Cardozo School of Law

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