Fourteenth Amendment Case Comment 123 Harv. L. Rev. 80

Electing Judges, Judging Elections, and the Lessons of Caperton


Few Supreme Court cases inspire a bestselling novel before they’re decided. But Caperton v. A.T. Massey Coal Co. did: the story of how a big damages verdict prompted the head of a large corporation to pour millions of dollars into a judicial election for the court that would hear the company’s appeal inspired John Grisham just as it appalled the Court. Caperton calls to mind far more than the plot of a page-turner. This Comment shows how Caperton also taps into several long-running themes in the law of democracy – the set of doctrines and jurisprudential positions that create the structure within which politics, elections, and governance occur.

In Part I, I discuss how Caperton fits into a stream of cases involving judicial elections. Judicial elections confront the Supreme Court with an uncomfortable fact. The Court has often drawn a sharp distinction between judges and other public officials. But while the Court holds itself apart from the “political thicket,” the vast majority of American judges cannot escape that thicket altogether: they get or retain their positions through popular election. While the Court’s opinion in Caperton focused explicitly only on the way that extraordinary infusions of money into a judicial election may threaten judicial impartiality, the Court’s analysis cannot be so easily cabined. Money, after all, gains its power in elections because it is the fuel of politics and can be converted into votes. If gratitude for a past financial contribution can pose a sufficiently serious “risk of actual bias or pre-judgment” to threaten “the guarantee of due process,” then what should we make of the more direct effect that comes from fear of future electoral retaliation? Political calculations could influence judges’ decisions in a wide range of cases and might influence them in less visible, and thus more pernicious and less potentially self-correcting, ways than campaign spending does.

In Part II, I turn from what Caperton says about electing judges to how Caperton reflects broader themes about judicial regulation of politics. Across a variety of domains, a central problem in the law of democracy concerns articulating when and how courts should intervene. Most fundamentally, Caperton continues the Court’s problematic insistence on addressing structural problems through the lens of protecting individual rights.