US Pharm. 2009;34(4):40-42. 

Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.
–Thurgood Marshall (1908-1993), U.S. Supreme Court Justice (1967-1991)

This is a column devoted to those who think justice is a pure, uncompromising idea. Instead, there are very distinct gray areas when questions arise as to the legitimacy of a judge’s ruling. If you ever find yourself in a court of law, be prepared to ask whether or not the judge might have some undisclosed bias favoring one party over another. 

There has been significant media attention in the past few months on judges who allegedly have or had a conflict of interest in a matter coming before the court. Much of the criticism is directed at political contributions to a judge’s campaign to get elected to office. Thirty-nine states require judges to be elected for a specific period of time.2 If the sitting judge wants to keep the seat, he or she will have to campaign again at the end of the term and try to beat off contenders. The point is that elected judges do receive campaign contributions from a variety of sources and in significant amounts. The question becomes, What should judges do when one of their contributing constituents appears before them as a litigant in a legal dispute? One would hope that the judges would voluntarily recuse themselves by not hearing or voting on the outcome of the dispute. Unfortunately, that does not always happen. It should be pointed out that judges in the federal courts are nominated by the President of the United States and, if confirmed by the Senate, hold their jobs for life unless they do something so egregious that they get kicked off the bench. The remaining 11 states have a variety of methods of appointing judges for various periods of time. 

Due Process

One of the most fundamental rights that we enjoy as American citizens is the right of due process afforded to each and every one of us, including both the good folks and the bad guys, under the 5th and 14th Amendments to the U.S. Constitution. Those amendments apply to both federal and various state actions against individuals. While most of the actions taken during a due process hearing involve criminal matters, civil disputes must also comply with the requirements of this idea. Due process is the principal that assures us that we are entitled to all of the rights that our government must abide by, as opposed to only some those rights.3 

There is nothing new in the idea of due process; the concept implicitly appears in the Magna Carta of England as long ago as ad1215, and a later revision explicitly added the statement, “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”4 As construed by the U.S. courts, due process includes an individual’s right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial and unbiased in regard to the matter before them. 

One of the primary purposes of due process is to assure that judges, not legislators, will define and guarantee fairness, liberty, and justice to everyone brought before the courts. As you might imagine, this puts an awesome responsibility on those judges who must administer these concepts. The inquiry of how to oversee this duty comes into question when the judge presiding over a hearing has an apparent, potential, or actual conflict of interest in the outcome of a case. But sometimes it is difficult to determine if any bias or conflict of interest exists. Moreover, it is usually the trial court judge that has to decide if he or she is biased or might benefit in the outcome of a trial. If the judge declines to be recused voluntarily, there is not much that can be done about it until the trial is over, when the recusal issue is taken up by an appellate court. 

Facts of the Case

On March 3, 2009, the U.S. Supreme Court heard arguments in the case of Caperton v. Massey. In describing the facts of the case, one observer likened the dispute to a John Grisham novel.5 The case, which has been dragging on for about 10 years, highlights circumstances surrounding judicial elections. The bottom line issue is whether an elected judge’s refusal to take himself off a case involving a chief financial backer violates the Constitution’s promise of due process for all. From the questions asked of the litigants (nine Justices of the Supreme Court), the debate is more cantankerous than one might think.6 Some of the justices identified as “conservative” on due process debates expressed doubts that it would be possible to craft a rule that would distinguish between legitimate political activity and improper appearances of bias on the part of an elected judge. The more “liberal” justices seemed to think that a reasonable standard could be developed by asking if a person who knew all the facts about a judge’s relationship to a litigant believed that the judge would have a difficult time in not showing any bias or conflict of interest. 

Getting to the facts before the Supreme Court: AT Massey Coal, a West Virginia corporation and one of the largest businesses in the state, was sued by Hugh M. Caperton, owner of the much smaller Harman Mining Co., a competitor of Massey.7 Massey took over a coal-hauling agreement with a customer that had used the Harman organization for several years. Caperton claimed that Massey had committed fraud and that it had unlawfully interfered with his business. Caperton’s business declared bankruptcy and ceased its operations. At the end of the trial in 2002, a jury awarded Caperton a $50 million verdict, finding that Massey had committed fraud in securing the hauling agreement with the former client of Harman. Donald Blankenship, the owner of Massey, appealed the verdict up to the West Virginia Supreme Court. Before the state’s highest court could review the matter, Blankenship contributed $3 million to the 2004 campaign of attorney Brent Benjamin, who was vying to unseat one of the five justices sitting on this court whose term was up. That contribution constituted more than 60% of all the money spent on Benjamin’s attempt to get elected. In other words, the one contribution made by Blankenship accounted for more than half of all of the other contributors combined. Benjamin won. 

Three years later, that court heard arguments in the Caperton v. Massey case. With Benjamin casting the deciding vote by a 3-2 margin, the jury verdict was reversed, giving Massey a big win.8 But the idea of fundamental fairness when this kind of thing happens gave the U.S. Supreme Court a reason to review the constitutional implications of these proceedings. This will be a case of “first impression,” meaning that the high court has never decided a case that is similar to this one. Put another way, the decision will set precedence for all federal courts below it and at least some of the states’ courts as well. A final decision should be made in the summer or fall of 2009. 

Justice Benjamin claims that the millions of dollars donated by the Massey chairman and CEO were contributed to an independent campaign group seeking to unseat Benjamin’s rival. On two separate occasions, Benjamin refused to recuse himself at the request of the plaintiff, Caperton, claiming that he had no “pecuniary” interest in the outcome of the case. While that may be technically true, Caperton argued that Benjamin’s use of the Massey money contributed to his campaign by Blankenship constituted a conflict of interest.9 At the very least, the judge had to have a debt of gratitude for Blankenship’s very large and influential gift. Make no mistake: Contributions to judges running for state supreme court seats are a very big business that can easily be the deciding factor in who wins and who loses. The total amount of money spent to elect judges to state supreme court positions from 2000 to 2007 was about $168 million, double the amount spent during the 1990s.10 

While there have been other cases holding that a judge should have been disqualified because a personal benefit would be realized by voting a certain way, this campaign contribution situation is different. One of the more interesting aspects of the hearing in the case now being considered is the remarks make by Chief Justice John Roberts. He wondered what probability of bias would be improper, suggesting that a litigant’s contribution of somewhere between 10% and 50% of a judge’s total campaign spending would be acceptable.11 

Other Recusal Cases

This issue is notable because Justice Roberts recused himself from hearing and deciding Warner-Lambert v. Kent, a case before the Supreme Court in 2008. He disqualified himself because he owned significant amounts of stock in the defendant’s parent company, Pfizer.12 In a 2007 financial disclosure statement, Justice Roberts wrote that he owned stock in the company that was worth between $10,000 and $50,000.13 That case involved the question of whether decisions made by the FDA on the labeling of a drug approved for marketing in the U.S. preempt state-based product liability cases when the plaintiff claims that a drug company should be held liable because it did not adequately warn against foreseeable injuries. Four of the justices voted to uphold the Court of Appeals decision in favor of the injured plaintiffs after finding that the FDA’s mandated labeling does not preempt state product liability laws. The four other justices would have reversed the Court of Appeals decision, thereby holding that federal law on the issue does preempt inconsistent state laws. Under the rules of procedure, when the U.S. Supreme Court ends with a tied vote, the Court of Appeals decision is affirmed.14 

There is another important part of this recusal controversy. In November 2008, the U.S. Supreme Court heard oral arguments in the case of Levine v. Wyeth. The legal questions in this case are nearly identical to those involved in Warner-Lambert v. Kent, the one that Roberts recused himself from. The situation gets a bit messier because between the time that the Levine case was argued and then finally decided on March 4, 2009, Pfizer announced that it was buying Wyeth for about $68 billion in February 2009.15 Does this merger mean that Roberts should again disqualify himself from participating in the Levine decision? Apparently, he did not think so. On February 4, 2009, Wyeth’s lawyer for this case sent a letter to the clerk of the Supreme Court informing it of the pending transaction. But Wyeth’s attorney also told the Court that because of pending stockholder approvals and other matters, the transaction would not be completed until July 31 at the earliest, by which time its decision in Levine would have been released. As a result, the attorney indicated that he did not believe the pending takeover “warrants amendment of the corporate disclosure statement” submitted by Wyeth when Wyeth petitioned the Court to take up the case in 2008. The disclosure statement is ordinarily the way justices are informed about parent companies and subsidiaries of the corporate litigants before them and serves as notice if recusal is required.16 In this case, by a 6-3 decision, the majority of the Court ruled that FDA labeling requirements do not preempt state drug product liability laws.17 Justice Roberts joined with the three dissenters who would have ruled just the opposite. The importance of this case to the health care industry will be the subject of next month’s Legal Perspectives

Recusal questions are often difficult and not easily explained. With the exception of reviews by a higher court, there is no accountability for the individual judge who makes his or her own choice about disqualification to hear a case because of actual or perceived bias. Most of us would be happy to hear that our judge has reason to favor our side. The other side will scream about the unfairness of it all. 

But there is another side to this coin that needs be considered. What if the judge recuses himself from a case on moral grounds? Consider this on par with a pharmacist who refuses to dispense any oral contraceptives or abortifacients. Would it make any difference to you if the person with a prescription for birth control pills was a 15-year-old minor? What if you had good reason to believe that this young woman’s parents did not know she was taking this medication? In some states, female minors who are pregnant and want to terminate the pregnancy must get permission from a parent or a judge. Imagine what would happen if judges recused themselves from hearing these abortion requests because they disagree with the procedure for ethical or religious reasons.18,19 There have to be some objective controls or standards for the proper time and circumstances in which to expect the disqualification of a judge assigned to any case. At the very least, there has to be a higher level of accountability for the actions of those we allow to judge us.

Update:  On June 8, 2009, in a 5-4 split decision, the majority of the U.S. Supreme Court ruled that the West Virginia Supreme Court Justice who took the money should have recused himself from the case. Before being elected, Justice Brent Benjamin accepted a $3 million contribution from the owner of AT Massey Coal, one of the largest businesses in West Virginia. Three years prior, Massey had been sued by Hugh M. Caperton, the owner of a much smaller mining company, who claimed he had been run out of business by means of fraud and unfair practices. A jury awarded Caperton $50 million against the larger company. However, the owner of Massey then appealed to the West Virginia Supreme Court. Justice Benjamin, who had received the campaign contribution from Massey, cast the deciding vote that reversed the original jury finding. The U.S. Supreme Court determined that the due process of the Constitution requires a judge to step aside if he or she has “a direct, personal, substantial, pecuniary interest” in a case. According to the Court, the question that must be answered in determining whether such a conflict of interest exists to require the recusal of a judge is “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 adequately implemented.” The majority went on to state, “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 case will now go back to West Virginia for further consideration in light of this decision. [See: Caperton v. AT Massey Coal , Slip Op No 08-22 (June 8, 2009).
opinions/08pdf/08-22.pdf. Accessed June 10, 2009.]


1. Thurgood Marshall quotes. searchquotation.asp?search= Mere+access+to+the+courthouse+ doors+does+not+by+itself+ assure+a+proper+functioning+ of+the+adversary+process. Accessed March 10, 2009.
2. Sherman M. When should judges step aside? Justices weigh case. Associated Press. March 3, 2009.
nid=116. Accessed March 25, 2009.
3. Due process. Encarta dictionary.
dictionary_1861689525/due_ process.html. Accessed March 25, 2009.
4. 28 Edw. 3, c. 3, Chapter 29, 39 (King Edward III).
5. Biskupic J. Supreme Court case with the feel of a best seller. USA Today. February 16, 2009.
washington/2009-02-16-grisham- court_N.htm. Accessed March 12, 2009. The analogy is very apt, as one of Grisham’s novels, The Appeal (Doubleday, 2008), centers on buying a judge through campaign contributions and the consequences that result in states where judges are elected by popular vote.
6. Bravin J. High court split over case on judicial ethics. Wall Street Journal. March 3, 2009.
SB123611745589223003.html. Accessed March 12, 2009.
7. Supreme Court to rehear Massey-Caperton case. Charleston Gazette. January 24, 2008.
200801240555. Accessed March 25, 2009.
8. Id.
9. Cohen A. When judges go bad: Nothing good comes from requiring state judges to campaign for the bench. CBS News. March 13, 2009.
03/02/opinion/courtwatch/ main4838469.shtml. Accessed March 13, 2009.
10. Barnes R. Case may define when a judge must recuse self. Washington Post. March 2, 2009.
content/article/2009/03/01/ AR2009030102265_pf.html. Accessed March 13, 2009.
11. Nyden PJ. Justices clash over Benjamin case. Charleston Gazette. March 7, 2009.
200903030143. Accessed March 25, 2009.
12. Vivian JC. The sorcerer’s apprentice. US Pharm. 2008;33(5):70-74. The column discusses Warner-Lambert v. Kent, Slip Op No. 06-1498 (March 3, 2008), 128 S. Ct. 1168, 2008 U.S. Lexis 2235.
13. Silverman E. Supreme Court nixes preemption in Michigan. March 3, 2008.
supreme-court-nixes- preemption-in-michigan/. Accessed March 13, 2009.
14. Justice Roberts’s portfolio: Why stock investments and Supreme Court service don’t mix. Washington Post. February 23, 2009.
content/article/2009/02/22/ AR2009022201649.html. Accessed March 13, 2009.
15. Herper M. The Wyeth deal: Will Pfizer’s merger hurt innovation? Forbes. January 26, 2009.
pfizer-wyeth-pharmacuticals- biz-healthcare-cx_mh_ 0126pfizer.html. Accessed March 13, 2009.
16. Mauro T. Wyeth/Pfizer merger: Will Justice Roberts recuse from Wyeth v. Levine for Pfizer stock? February 28, 2009. http://cherryhill.injuryboard.
com/fda-and-prescription- drugs/wyethpfizer-merger-will- justice-roberts-recuse-from- wyeth-v-levine-for-pfizer- stock.aspx?googleid=258188. Accessed March 13, 2009.
17. Levine v. Wyeth, Slip Op No. 6-1249 (March 4, 2009).
18. Cline A. Judges opting out of abortion cases. September 10, 2005.
2005/09/10/judges-opting-out- of-abortion-cases.htm. Accessed March 13, 2009.
19. Judges refusing to hear minors’ abortion cases. American Constitution Society for Law and Policy Blog. September 5, 2005.
announcements-judges-refusing- to-hear-minors-abortion-cases. html. Accessed March 13, 2009. 

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