In recent years, two inextricably connected issues have received a great deal of attention in both United States political discourse and in the legal academic literature. One issue of intense legal debate and frustration has been that of judicial recusal, including an examination of the appropriate standards that should necessarily apply to judges that seem conflicted or biased in their role as neutral arbiter. A second issue that has spawned heated commentary and great dispute over the past decade is that of campaign finance law, including examination of the role that powerful and wealthy benefactors play in American electioneering. Both issues came to a head in the past year as the United States Supreme Court decided two landmark cases that will have far-reaching implications and consequences, Caperton v. A.T. Massey Coal and Citizens United v. Federal Election Commission. The moment that these decisions were announced, their connection undoubtedly crystallized for many observers. As Caperton and Citizens United shed new light on judicial recusal and campaign finance in an interconnected manner, Professor Michael LeRoy delivers an important empirical study, "Partisan Election of Judges: Equal Justice?" that provides evidence that we as a nation have reason to fear this potentially pernicious interconnectedness.
In a confluence of circumstance, what has been historically controversial, now puts in present peril the concept of “justice” and whether it can be “equal” in United States courts. Citizens United, Caperton v. Massey and "Partisan Election of Judges: Equal Justice?" together pose a troubling question: will judges who are elected in a partisan manner, where corporations can now more directly influence the result of judicial elections by contributing large cash electioneering outflows, manufacture outcomes that are biased toward those contributing corporations? The early returns are not good.
That is to say, contemporary empirical evidence suggests that the answer to the inquiry posed above is “yes.” Apparently partisan elected judges are unable to sit neutrally when large corporate expenditure ushered them to the bench. Or stated differently, when corporations are able to manipulate the judicial election process through significant cash disbursement, a judge that is unfriendly, if not hostile, to employee rights will be the likely result. The Supreme Court’s decisions in Citizens United and Caperton stand poised to exacerbate this disheartening empirical implication.
This Essay seeks to make sense of this confluence of Supreme Court decision making and recent empirical evidence. In examining this intermingling and its potential repercussions, Part II briefly considers several of the more disquieting of Professor LeRoy’s findings in Partisan Election of Judges: Equal Justice? Part III reviews the holding of the controversial Citizens United in light of LeRoy’s empirical report. Part IV examines the Caperton v. Massey decision, and queries whether it will have any protective influence in connection with corporate influence over the partisan judicial election process. Part V interrogates the consequences of LeRoy’s study, Citizens United and Caperton, viewing each through a corporate law prism and seeks to offer forward looking conclusions and recommendations.
andré douglas pond cummings, Procuring "Justice"?: Citizens United, Caperton, and Partisan Judicial Elections, 95 Iowa L. Rev. Bull. 89 (2010).