CAPERTON et al. v. A. T. MASSEY COAL CO., INC., et al.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
868 OCTOBER TERM, 2008
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 misrepresentation,
concealment, and tortious interference with existing contractual rela
tions 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 Blank
enship, Massey’s chairman and principal officer, supported Brent Benja
min rather than the incumbent justice seeking reelection. His $3 mil
lion in contributions exceeded the total amount spent by all other
Benjamin supporters and by Benjamin’s own committee. Benjamin
won by fewer than 50,000 votes. Before Massey filed its appeal, Caper
ton 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. Justice Benjamin de
nied 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 reversed the jury verdict.
Four months later, Justice Benjamin filed a concurring opinion, defend
ing the court’s opinion and his recusal decision.
Held: In all the circumstances of this case, due process requires recusal.
Pp. 876–890.
(a) The Due Process Clause incorporated the common-law rule requir
ing recusal when a judge has “a direct, personal, substantial, pecuniary
interest” in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has
also identified additional instances which, as an objective matter, re
quire recusal where “the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable,” Wi
throw v. Larkin, 421 U. S. 35, 47. Two such instances place the present
case in proper context. Pp. 876–881.
(1) The first involved local tribunals in which a judge had a financial
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: Be

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
869 Cite as: 556 U. S. 868 (2009)
Syllabus
cause he received a salary supplement for performing judicial duties
that was funded from the fines assessed, he received a supplement only
upon a conviction; and sums from the fines were deposited to the vil
lage’s general treasury fund for village improvements and repairs. Dis
qualification 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 balance 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. Monroeville, 409 U. S. 57, a conviction in another
mayor’s court was invalidated even though the fines assessed went only
to the town’s general fisc, because the mayor faced a “ ‘possible tempta
tion’ ” 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 Ala
bama’s lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The
proper constitutional inquiry was not “whether in fact [the justice] was
influenced,” id., at 825, but “whether sitting on [that] case . . . ‘ “would
offer 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 com
ponent. Pp. 877–879.
(2) The second instance emerged in the criminal contempt context,
where a judge had no pecuniary interest in the case but had determined
in an earlier proceeding whether criminal charges should be brought
and then proceeded to try and convict the petitioners. In re Murchi
son, 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 circumstances of
the case and the prior relationship required recusal. The judge’s prior
relationship with the defendant, as well as the information acquired
from the prior proceeding, was critical. In reiterating that the rule
that “a defendant in criminal contempt proceedings should be [tried]
before a judge other than the one reviled by the contemnor,” 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 objec
tive inquiry is not whether the judge is actually 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. 880–881.
(b) Because the objective standards implementing the Due Process
Clause do not require proof of actual bias, this Court does not question
Justice Benjamin’s subjective findings of impartiality and propriety and

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
870 CAPERTON v. A. T. MASSEY COAL CO.
Syllabus
need not determine whether there was actual bias. Rather, the ques
tion 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.” Withrow, 421 U. S.,
at 47. There is a serious risk of actual bias when a person with a per
sonal 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 compari
son to the total amount contributed 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
influence on the outcome. And the risk that Blankenship’s influence
engendered actual bias is sufficiently substantial that it “must be forbid
den if the guarantee of due process is to be adequately implemented.”
Ibid. The temporal relationship between the campaign contributions,
the justice’s election, and the pendency of the case is also critical, for it
was reasonably foreseeable that the pending case would be before the
newly elected justice. There is no allegation of a quid pro quo agree
ment, but the extraordinary contributions were made at a time when
Blankenship had a vested stake in the outcome. Just as no man is al
lowed to be a judge in his own cause, similar fears of bias can arise
when—without the other parties’ consent—a man chooses the judge in
his own cause. Applying this principle to the judicial election process,
there was here a serious, objective risk of actual bias that required
Justice Benjamin’s recusal. Pp. 881–887.
(c) Massey and its amici err in predicting that this decision will lead
to adverse consequences ranging from a flood of recusal motions to un
necessary interference with judicial elections. They point to no other
instance involving judicial campaign contributions that presents a po
tential 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 re
quires, most recusal disputes will be resolved without resort to the
Constitution, making the constitutional standard’s application rare.
Pp. 887–890.
223 W. Va. 624, 679 S. E. 2d 223, reversed and remanded.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
871 Cite as: 556 U. S. 868 (2009)
Syllabus
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, post,
p. 890. Scalia, J., filed a dissenting opinion, post, p. 902.
Theodore B. Olson argued the cause for petitioners. With
him on the briefs were Matthew D. McGill, Amir C. Tayrani,
Robert V. Berthold, Jr., David B. Fawcett, and Bruce E.
Stanley.
Andrew L. Frey argued the cause for respondents. With
him on the brief were Evan M. Tager, Dan Himmelfarb,
Jeffrey A. Berger, Lewis F. Powell III, and D. C. Offutt, Jr.*
*Briefs of amici curiae urging reversal were filed for the American
Academy of Appellate Lawyers by Wendy Cole Lascher, Gloria C. Phares,
and Timothy J. Berg; for the American Bar Association by H. Thomas
Wells, Jr., Keith R. Fisher, and William F. Sheehan; for the National
Association of Criminal Defense Lawyers by Pamela Harris; and for Pub
lic Citizen by Allison M. Zieve and Alan B. Morrison.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by Troy King, Attorney General of Alabama, and Corey
Maze, Solicitor General, Kevin C. Newsom, and Marc James Ayers, by
Richard S. Gebelein, Chief Deputy Attorney General of Delaware, and by
the Attorneys General for their respective States as follows: John W. Suth
ers of Colorado, Bill McCollum of Florida, James D. “Buddy” Caldwell of
Louisiana, Michael A. Cox of Michigan, and Mark L. Shurtleff of Utah;
for the Center for Competitive Politics by Stephen M. Hoersting and Reid
Alan Cox; for the James Madison Center for Free Speech by James Bopp,
Jr.; and for Ronald D. Rotunda et al. by C. Thomas Ludden.
Briefs of amici curiae were filed for the American Association for Jus
tice by Robert S. Peck and Les Weisbrod; for the Brennan Center for Jus
tice at New York University School of Law et al. by James J. Sample, Aziz
Huq, J. Gerald Hebert, Paul S. Ryan, and Tara Malloy; for the Center for
Political Accountability et al. by Karl J. Sandstrom; for the Committee
for Economic Development et al. by Daniel F. Kolb, Edmund Polubinski
III, and David B. Toscano; for the Conference of Chief Justices by Thomas
R. Phillips, Roy A. Schotland, and George T. Patton, Jr.; for Justice At
Stake et al. by Elizabeth B. Wydra; for the Supreme Court of the State
of Louisiana by Esmond Phelps Gay and Kevin Richard Tully; for Ten
Current and Former Chief Justices and Justices by Patrick J. Wright; and
for 27 Former Chief Justices and Justices by Charles K. Wiggins and J.
Mark White.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
872 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
In this case the Supreme Court of Appeals of West Vir
ginia reversed a trial court judgment, which had entered 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 Fourteenth Amend
ment 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 contributions in an ex
traordinary 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 constitu
tionally 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 affili
ates (hereinafter Massey) liable for fraudulent misrepresen
tation, concealment, and tortious interference with existing
contractual relations. The jury awarded petitioners Hugh
Caperton, Harman Development Corp., Harman Mining
Corp., and Sovereign Coal Sales (hereinafter 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 Mas
sey’s motion for judgment as a matter of law.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
873 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
Don Blankenship is Massey’s chairman, chief executive
officer, and president. After the verdict but before the ap
peal, West Virginia held its 2004 judicial elections. Know
ing the Supreme Court of Appeals of West Virginia would
consider the appeal in the case, Blankenship decided to sup
port 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 maximum
to Benjamin’s campaign committee, Blankenship donated al
most $2.5 million to “And For The Sake Of The Kids,” a polit
ical organization formed under 26 U. S. C. § 527. The § 527
organization opposed McGraw and supported Benjamin.
223 W. Va. 624, 700, 679 S. E. 2d 223, 299 (2008) (Benjamin,
Acting C. J., concurring). Blankenship’s donations ac
counted for more than two-thirds of the total funds it raised.
App. 150a. This was not all. Blankenship spent, in addi
tion, just over $500,000 on independent expenditures—for
direct mailings and letters soliciting donations as well as
television and newspaper advertisements—“ ‘to support . . .
Brent Benjamin.’ ” Id., at 184a, 186a, 200a (quoting Blank
enship’s state campaign financial disclosure filings; bold type
face omitted).
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%). 223 W. Va., at 702,
679 S. E. 2d, at 301 (Benjamin, Acting C. J., concurring).
In October 2005, before Massey filed its petition for appeal
in West Virginia’s highest court, Caperton moved to disqual

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
874 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
ify 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 indi
cated that he “carefully considered the bases and accompany
ing 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 Jus
tice will be anything but fair and impartial.” App. 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 ver
dict against Massey. The majority opinion, authored by
then-Chief Justice Davis and joined by Justices Benjamin
and Maynard, found that “Massey’s conduct warranted 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 in West Vir
ginia, 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 “major
ity’s opinion is morally and legally wrong.” Id., at 420a–
422a. Justice Albright also dissented, 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 dis
qualification of three of the five justices who decided the
appeal. Photos had surfaced of Justice Maynard vacation
ing with Blankenship in the French Riviera while the case
was pending. Id., at 440a–441a, 456a. Justice Maynard
granted Caperton’s recusal motion. On the other side Jus
tice Starcher granted Massey’s recusal motion, apparently

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
875 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
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 suggestion and denied Caperton’s recusal
motion.
The court granted rehearing. Justice Benjamin, now in
the capacity of acting chief justice, selected Judges Cookman
and Fox to replace the recused justices. Caperton moved a
third time for disqualification, arguing that Justice Benjamin
had failed to apply the correct standard under West Virginia
law—i. e., whether “a reasonable and prudent person, know
ing 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 Ben
jamin again refused to withdraw, noting that the “push poll”
was “neither 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 ver
dict, and again it was a 3-to-2 decision. Justice Davis filed
a modified version of her prior opinion, repeating the two
earlier holdings. She was joined by Justice Benjamin and
Judge Fox. Justice Albright, joined by Judge Cookman, dis
sented: “Not only is the majority opinion unsupported by the
facts and existing case law, but it is also fundamentally un
fair. Sadly, justice was neither honored nor served by the
majority.” 223 W. Va., at 685, 679 S. E. 2d, at 284. The
dissent also noted “genuine due process implications arising
under federal law” with respect to Justice Benjamin’s failure
to recuse himself. Id., at 686, n. 16, 679 S. E. 2d, at 285, n. 16
(citing Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986); In
re Murchison, 349 U. S. 133, 136 (1955)).

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
876 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
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, sub
stantial, pecuniary interest’ in this case.” 223 W. Va., at 702,
679 S. E. 2d, at 301 (quoting Lavoie, supra, at 822). Adopt
ing “a standard merely of ‘appearances,’ ” he concluded,
“seems little more than an invitation to subject West Virgin
ia’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.” 223
W. Va., at 707, 679 S. E. 2d, at 306.
We granted certiorari. 555 U. S. 1028 (2008).
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 relat
ing to judicial disqualification [do] not rise to a constitutional
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 dis
cretion.” 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, pecuni
ary 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. Madison); see Frank, Dis

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
877 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
qualification of Judges, 56 Yale L. J. 605, 611–612 (1947).
Under this rule, “disqualification for bias or prejudice was
not permitted”; those matters were left to statutes and judi
cial codes. Lavoie, supra, at 820; see also Part IV, infra
(discussing judicial codes). Personal bias or pre judice
“alone would not be sufficient basis for imposing a constitu
tional 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 additional
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 constitutionally 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.
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 prohibit
ing the possession of alcoholic beverages. Inherent in this
structure were two potential conflicts. First, the mayor re
ceived a salary supplement for performing judicial 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 deposited to the village’s
general treasury fund for village improvements and repairs.
Id., at 522.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
878 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
The Court held that the Due Process Clause required dis
qualification “both because of [the mayor-judge’s] direct pe
cuniary interest in the outcome, and because of his official
motive to convict and to graduate the fine to help the finan
cial 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 tempta
tion 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, denies the lat
ter due process of law.” Ibid.
The Court was thus concerned with more than the tradi
tional common-law prohibition on direct pecuniary interest.
It was also concerned with a more general concept of inter
ests that tempt adjudicators to disregard neutrality.
This concern with conflicts resulting from financial incen
tives 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 “ ‘possible temptation’ ” the
mayor might face; the mayor’s “executive 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 appeared to be in Tumey.” Gibson v. Berry
hill, 411 U. S. 564, 579 (1973) (an administrative board com

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
879 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
posed of optometrists had a pecuniary interest of “sufficient
substance” 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 Ala
bama Supreme Court to uphold a punitive damages award
against an insurance company for bad-faith refusal to pay a
claim. At the time of his vote, the justice was the lead plain
tiff in a nearly identical lawsuit pending in Alabama’s lower
courts. His deciding vote, this Court surmised, “undoubt
edly ‘raised the stakes’ ” for the insurance 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 ‘ “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 underscored 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 important that the test have an objec
tive component.
The Lavoie Court proceeded to distinguish the state-court
justice’s particular interest in the case, which required recu
sal, from interests that were not a constitutional 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)).

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
880 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
B
The second instance requiring recusal that was not dis
cussed at common law emerged in the criminal contempt con
text, where a judge had no pecuniary interest in the case but
was challenged because of a conflict arising from his partici
pation 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 peti
tioners before him. One petitioner answered questions, but
the judge found him untruthful and charged him with per
jury. 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. The judge pro
ceeded 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 de
fined 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 conviction or
acquittal of those accused.” Id., at 137. That is because
“[a]s a practical matter it is difficult if not impossible 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 cir
cumstances and the relationship from those where the Con

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
881 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
stitution 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 “adjudi
cation 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 relationship with the
defendant, as well as the information acquired from the prior
proceeding, was of critical import.
Following Murchison the Court held in Mayberry v. Penn
sylvania, 400 U. S. 455, 466 (1971), “that by reason of the
Due Process Clause of the Fourteenth Amendment a defend
ant in criminal contempt proceedings should be given a pub
lic 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 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 maintain that calm detach
ment necessary for fair adjudication.” 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 chal
lenge, though ‘disruptive, recalcitrant and disagreeable com
mentary,’ 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, subjec
tively biased, but whether the average judge in his position
is “likely” to be neutral, or whether there is an unconstitu
tional “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

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
882 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
of judicial elections, a framework not presented in the prece
dents we have reviewed and discussed.
Caperton contends that Blankenship’s pivotal role in get
ting Justice Benjamin elected created a constitutionally in
tolerable probability of actual bias. Though not a bribe or
criminal influence, Justice Benjamin would nevertheless feel
a debt of gratitude to Blankenship for his extraordinary ef
forts 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) benefited financially from a de
fendant’s conviction, as well as the conflict identified in
Murchison and Mayberry when a judge was the object of a
defendant’s contempt.
Justice Benjamin was careful to address the recusal mo
tions and explain his reasons why, on his view of the con
trolling 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 established. He
found no basis for recusal because Caperton failed to provide
“objective evidence” or “objective information,” but merely
“subjective belief ” of bias. App. 336a, 337a–338a, 444a–
445a. Nor could anyone “point to any actual conduct or ac
tivity on [his] part which could be termed ‘improper.’ ” 223
W. Va., at 694, 679 S. E. 2d, at 293. In other words, based
on the facts presented by Caperton, Justice Benjamin con
ducted a probing search into his actual motives and inclina
tions; and he found none to be improper. We do not ques
tion his subjective findings of impartiality and propriety.
Nor do we determine whether there was actual bias.
Following accepted principles of our legal tradition re
specting 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.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
883 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
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. Car
dozo, 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 schol
arship and experience and common sense; and fairness and
disinterest and neutrality are among the factors at work.
To bring coherence to the process, and to seek 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 fac
tor 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 decision or to be an influence so
difficult to dispel that there is a real possibility of undermin
ing 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 ac
tual 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, supra, at 465–466;
Lavoie, 475 U. S., at 825. In defining these standards the
Court has asked whether, “under a realistic appraisal of psy
chological tendencies and human weakness,” the interest

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
884 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
“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.” 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, 400 U. S., at 465 (“It is, of
course, not every attack on a judge that disqualifies him from
sitting”); Lavoie, supra, at 825–826 (some pecuniary inter
ests are “ ‘too remote and insubstantial’ ”). We conclude
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 disproportion
ate 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 contribu
tion’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 in
fluence in placing Justice Benjamin on the case. Blan
kenship contributed some $3 million to unseat the incumbent
and replace him with Benjamin. His contributions eclipsed
the total amount spent by all other Benjamin supporters
and exceeded by 300% the amount spent by Benjamin’s cam
paign committee. App. 288a. Caperton claims Blankenship
spent $1 million more than the total amount spent by the
campaign committees of both candidates combined. Brief
for Petitioners 28.
Massey responds that Blankenship’s support, while sig
nificant, 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, en

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
885 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
dorsed Benjamin. Brief for Respondents 54. It also con
tends that then-Justice McGraw cost himself the election by
giving a speech during the campaign, a speech the opposition
seized upon for its own advantage. Ibid.
Justice Benjamin raised similar arguments. He asserted
that “the outcome of the 2004 election was due primarily to
[his own] campaign’s message,” as well as McGraw’s “devas
tat[ing]” speech in which he “made a number of controver
sial claims which became a matter of statewide discussion in
the media, on the internet, and elsewhere.” 223 W. Va., at
701, and n. 29, 679 S. E. 2d, at 300, and n. 29; see also id.,
at 702–703, and nn. 35–39, 679 S. E. 2d, at 301–302, 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 elec
torate to choose a particular candidate is a difficult endeavor,
not likely to lend itself to a certain conclusion. This is par
ticularly true where, as here, there is no procedure for judi
cial 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 possible 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
223 W. Va., at 702, 679 S. E. 2d, at 301, Blankenship’s cam
paign contributions—in comparison to the total amount con
tributed to the campaign, as well as the total amount spent
in the election—had a significant and disproportionate influ
ence on the electoral outcome. And the risk that Blank
enship’s influence 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.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
886 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
The temporal relationship between the campaign contribu
tions, the justice’s election, and the pendency of the case is
also critical. It was reasonably foreseeable, when the cam
paign 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 motions. 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 extraordi
nary 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, similar 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 prin
ciple to the judicial election process, there was here a seri
ous, objective risk of actual bias that required Justice Benja
min’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.” Mur
chison, 349 U. S., at 136. The failure to consider objective
standards requiring recusal is not consistent with the imper
atives of due process. We find that Blankenship’s significant
and disproportionate influence—coupled with the temporal
relationship between the election and the pending case—
“ ‘ “offer[s] 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 ex

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
887 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
treme facts the probability of actual bias rises to an unconsti
tutional 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—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 campaign 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 es
tablished legal principles, and sometimes no administrable
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 Sacra
mento v. Lewis, 523 U. S. 833, 846–847 (1998) (reiterating the
due process prohibition on “executive abuse of power . . .
which shocks the conscience”); id., at 858 (Kennedy, J., con
curring) (explaining that “objective 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 unconsti
tutional probability of bias that “ ‘cannot be defined with pre
cision.’ ” Lavoie, supra, at 822 (quoting Murchison, supra,
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;

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
888 CAPERTON v. A. T. MASSEY COAL CO.
Opinion of the Court
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 an
nounced in those cases raised questions similar to those that
might be asked after our decision today, 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 appearance
of partiality. Almost every State—West Virginia in
cluded—has adopted the American Bar Association’s objec
tive standard: “A judge shall avoid impropriety and the ap
pearance 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 competence is impaired.”
Canon 2A, Commentary; see also W. Va. Code of Judicial
Conduct, Canon 2A, and Commentary (2009) (same).
The West Virginia Code of Judicial Conduct also requires
a judge to “disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be ques
tioned.” Canon 3E(1); see also 28 U. S. C. § 455(a) (“Any jus
tice, 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 ob
jective assessment of the judge’s conduct produces a reason
able question about impartiality, not on the judge’s subjec
tive 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,

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
889 Cite as: 556 U. S. 868 (2009)
Opinion of the Court
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 that a fair-minded person could not set
aside when judging the dispute”). Indeed, some States re
quire 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 in
tegrity of the nation’s elected judges.” Brief for Conference
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 integrity
is, in consequence, a state interest of the highest 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 requires.” 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 professional standards of the
bench and bar”).
“The Due Process Clause demarks only the outer bound
aries of judicial disqualifications. Congress and the states,
of course, remain free to impose more rigorous standards

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
890 CAPERTON v. A. T. MASSEY COAL CO.
Roberts, C. J., dissenting
for judicial disqualification than those we find mandated here
today.” Lavoie, 475 U. S., at 828. Because the codes of ju
dicial conduct provide more protection than due process re
quires, most disputes over disqualification will be resolved
without resort to the Constitution. Application of the con
stitutional standard implicated in this case will thus be con
fined 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.
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 judi
ciary—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 disqualifica
tion of a judge: when the judge has a financial interest in the
outcome of the case, and when the judge is trying a defend
ant for certain criminal contempts. Vaguer notions of bias
or the appearance of bias were never a basis for disqualifica
tion, either at common law or under our constitutional prece
dents. 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 “probabil
ity of bias.” Unlike the established grounds for disqualifi
cation, a “probability of bias” cannot be defined in any lim
ited way. The Court’s new “rule” provides no guidance to

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
891 Cite as: 556 U. S. 868 (2009)
Roberts, C. J., dissenting
judges and litigants about when recusal will be constitution
ally required. This will inevitably lead to an increase in al
legations that judges are biased, however groundless those
charges may be. The end result will do far more to erode
public confidence in judicial impartiality than an isolated fail
ure 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 Constitu
tion 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 inadvertence, ‘impute to judges
a lack of firmness, wisdom, or honor’ ” (quoting Bridges v.
California, 314 U. S. 252, 273 (1941))). We have thus iden
tified 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, pecuni
ary interest.” Tumey v. Ohio, 273 U. S. 510, 523 (1927).
This principle is relatively straightforward, and largely
tracks the longstanding common-law rule regarding judicial
recusal. See Frank, Disqualification of Judges, 56 Yale L. J.
605, 609 (1947) (“The common law of disqualification . . . was
clear and simple: a judge was disqualified for direct pecuni
ary interest and for nothing else”). For example, a defend
ant’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

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
892 CAPERTON v. A. T. MASSEY COAL CO.
Roberts, C. J., dissenting
immediate effect of enhancing both the legal status and the
settlement value of his own case”); Connally v. Georgia, 429
U. S. 245, 250 (1977) (per curiam).
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 through
out the trial. When that defendant was subsequently
charged with criminal contempt, we concluded 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 controversy” with the defendant
could not subsequently preside over that defendant’s crimi
nal 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 Lavoi e,
supra, at 820.
Subject to the two well-established exceptions described
above, questions of judicial recusal are regulated by “com
mon 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: friend
ship with a party or lawyer, prior employment experience,
membership in clubs or associations, prior speeches and
writings, religious affiliation, and countless other considera
tions. We have never held that the Due Process Clause re

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
893 Cite as: 556 U. S. 868 (2009)
Roberts, C. J., dissenting
quires recusal for any of these reasons, even though they
could be viewed as presenting a “probability of bias.” Many
state statutes require recusal based on a probability or ap
pearance 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 requires—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 majority
repeatedly emphasizes the need for an “objective” standard.
Ante, at 872, 877, 879, 881–888. The majority’s analysis is
“objective” in that it does not inquire into Justice Benjamin’s
motives or decisionmaking process. But the standard 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 probability of bias stand
ard is somehow limited to financial support in judicial elec
tions, 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? What level of
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, noncoordinated expenditures treated
the same as direct contributions to a candidate’s cam
paign? What about contributions to independent out
side groups supporting a candidate?

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
894 CAPERTON v. A. T. MASSEY COAL CO.
Roberts, C. J., dissenting
4. Does it matter whether the litigant has contributed to
other candidates or made large expenditures in connec
tion with other elections?
5. Does the amount at issue in the case matter? What if
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 declaratory
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 re
cedes? 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, physicians’
group, or the plaintiffs’ bar? Must the judge recuse in
all cases that affect the association’s interests? 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 association?
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
crime,” must the judge recuse in all criminal cases?
10. What if the candidate draws “disproportionate” support
from a particular racial, religious, ethnic, or other group,
and the case involves an issue of particular importance
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

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
895 Cite as: 556 U. S. 868 (2009)
Roberts, C. J., dissenting
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 expenditures,
even though he has no direct financial interest in the out
come (e. g., a facial challenge to an agency rulemaking or
a suit seeking to limit an agency’s jurisdiction)?
13. Must the judge’s vote be outcome determinative in order
for his nonrecusal 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?
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 hos
tility” towards major opponents of their candidacies?
Must the judge recuse in cases involving individuals or
groups who spent large amounts of money trying unsuc
cessfully to defeat him?
19. If there is independent review of a judge’s recusal deci
sion, e. g., by a panel of other judges, does this completely
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?

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
896 CAPERTON v. A. T. MASSEY COAL CO.
Roberts, C. J., dissenting
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 to State?
What if particular States have a history of expensive ju
dicial 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?
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 885. But elsewhere in the opinion, the majority con
siders “the apparent effect such contribution had on the
outcome of the election,” ante, at 884, and whether the
litigant has been able to “choos[e] the judge in his own
cause,” ante, at 886. 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 missteps?
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 issue in
the pending case were ultimate liability?

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
897 Cite as: 556 U. S. 868 (2009)
Roberts, C. J., dissenting
28. Which cases are implicated by this doctrine? Must the
case be pending at the time of the election? Reasonably
likely to be brought? What about an important but un
anticipated 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 corporation get
imputed to its executives, and vice versa? Does a con
tribution or expenditure by one family member get im
puted to other family members?
30. What if the election is nonpartisan? What if the elec
tion is just a yes-or-no vote about whether to retain an
incumbent?
31. What type of support is disqualifying? What if the sup
porter’s expenditures are used to fund voter registra
tion or get-out-the-vote efforts rather than television
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 collateral
relief in federal district court under § 1983? What stat
utes 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

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
898 CAPERTON v. A. T. MASSEY COAL CO.
Roberts, C. J., dissenting
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
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 deci
sion in different circumstances. Today’s opinion requires
state and federal judges simultaneously to act as political
scientists (why did candidate X win the election?), econo
mists (was the financial support disproportionate?), and psy
chologists (is there likely to be a debt of gratitude?).
The Court’s inability to formulate a “judicially discernible
and manageable standard” strongly counsels against the rec
ognition of a novel constitutional right. See Vieth v. Jube
lirer, 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., concur
ring in judgment) (“The failings of the many proposed stand
ards for measuring the burden a gerrymander imposes . . .
make our intervention improper”). The need to consider
these and countless other questions helps explain why the
common law and this Court’s constitutional jurisprudence

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
899 Cite as: 556 U. S. 868 (2009)
Roberts, C. J., dissenting
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 inher
ently boundless nature of its new rule poses a problem. But
the majority’s only answer is that the present case is an “ex
treme” one, so there is no need to worry about other cases.
Ante, at 886–887. The Court repeats this point over and
over. See ante, at 884 (“[T]his is an exceptional case”);
ante, at 886–887 (“[o]n these extreme facts”); ante, at 887
(“Our decision today addresses an extraordinary situation”);
ibid. (“The facts now before us are extreme by any meas
ure”); ante, at 890 (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 fre
quently filed. The success rate for certiorari petitions be
fore this Court is approximately 1.1%, and yet the previous
Term some 8,241 were filed. Every one of the “Caperton
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 cor
rect the extreme case, rather than adhering to the legal prin
ciple. 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. United
States, 522 U. S. 93 (1997). Historically, we have held that
the Double Jeopardy Clause only applies to criminal penal
ties, 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 “over

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
900 CAPERTON v. A. T. MASSEY COAL CO.
Roberts, C. J., dissenting
whelmingly disproportionate to the damages [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 (Ken
nedy, J., concurring) (“Today’s holding, I would stress, con
stitutes 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 double
jeopardy claims spawned in the wake of Halper.” 522 U. S.,
at 98; see also ibid., n. 4. The novel claim that we had recog
nized in Halper turned out not to be so “rare” after all, and
the test we adopted in that case—“overwhelmingly dispro
portionate”—had “proved unworkable.” 522 U. S., at 101–
102 (internal quotation marks omitted). We thus abandoned
the Halper rule, ruing our “ill considered” “deviation from
longstanding double jeopardy principles.” 522 U. S., at 101.
The de´ ja` vu is enough to make one swoon. Today, the
majority again departs from a clear, longstanding con
stitutional rule to accommodate an “extreme” case in
volving “grossly disproportionate” amounts of money. I be
lieve 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
disproportionate.”
B
And why is the Court so convinced that this is an extreme
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, Justice 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

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
901 Cite as: 556 U. S. 868 (2009)
Roberts, C. J., dissenting
campaign by an independent third party might distort the
campaign’s message or cause a backlash against the candi
date, even though the candidate was not responsible for the
ads. See Buckley v. Valeo, 424 U. S. 1, 47 (1976) (per cu
riam) (“Unlike contributions, such independent expenditures
may well provide little assistance to the candidate’s cam
paign and indeed may prove counterproductive”); see also
Brief for Conference of Chief Justices as Amicus Curiae 27,
n. 50 (citing examples of judicial elections in which inde
pendent expenditures backfired and hurt the candidate’s
campaign). The majority repeatedly characterizes Blank
enship’s spending as “contributions” or “campaign contribu
tions,” ante, at 872, 873, 884–887, 889, but it is more accurate
to refer to them as “independent expenditures.” Blank
enship 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 approximately
two-thirds of its funding from Blankenship—spent $3,623,500
in connection with the election. 223 W. Va. 624, 704–705,
679 S. E. 2d 223, 303–304 (2008) (Benjamin, Acting C. J., con
curring). But large independent expenditures were also
made in support of Justice Benjamin’s opponent. “Consum
ers for Justice”—an independent group that received large
contributions from the plaintiffs’ bar—spent approximately
$2 million in this race. Id., at 704, n. 41, 679 S. E. 2d, at
303, n. 41. And Blankenship has made large expenditures
in connection with several previous West Virginia elections,
which undercuts any notion that his involvement in this elec
tion 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 ob
servers believed that Justice Benjamin’s opponent doomed

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
902 CAPERTON v. A. T. MASSEY COAL CO.
Scalia, J., dissenting
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. 223 W. Va.,
at 703, n. 38, 679 S. E. 2d, at 302, 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 ma
jority, I cannot say with any degree of certainty that Blank
enship “cho[se] the judge in his own cause.” Ante, at 886.
I would give the voters of West Virginia more credit than
that.
* * *
It is an old cliche´, but sometimes the cure is worse than
the disease. I am sure there are cases where a “probability
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 be
lieve 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.
Justice Scalia, dissenting.
The principal purpose of this Court’s exercise of its cer
tiorari 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 cre
ate 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 confidence in the
judicial system. Brief for Petitioners 16.

556US2 Unit: $U64 [04-07-14 20:32:35] PAGES PGT: OPIN
903 Cite as: 556 U. S. 868 (2009)
Scalia, J., dissenting
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 delivering
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 indetermi
nate 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.
A Talmudic maxim instructs with respect to the Scripture:
“Turn it over, and turn it over, for all is therein.” 8 The
Babylonian Talmud: Seder Nezikin, Tractate Aboth, Ch. V,
Mishnah 22, pp. 76–77 (I. Epstein ed. 1935) (footnote omit
ted). Divinely inspired text may contain the answers to all
earthly questions, but the Due Process Clause most as
suredly 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 com
mands of our prior due process law do not require it? Un
doubtedly. The relevant question, however, is whether we
do more good than harm by seeking to correct this imperfec
tion through expansion of our constitutional mandate in a
manner ungoverned by any discernable rule. The answer
is obvious.