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Scholars Take On Corruption In Judicial Elections

Publication Date: 
January 14, 2010
The Harvard Law Record
Matthew W. Hutchins

Professor Pamela Karlan takes part in a panel at the Harvard Law Review Forum on the Supreme Court case Caperton v. A.T. Massey Coal Co:

The Harvard Law Review is usually the leading predictor of the actions of the Supreme Court, but this time John Grisham beat it to the punch. Grisham’s latest legal thriller, The Appeal, borrowed its story of a judge captured by a wealthy local businessman from the facts of the case of Caperton v. A.T. Massey Coal Co., which recently made its way from the West Virginia Supreme Court of Appeals to the Supreme Court of the United States.

So when the Law Review held its forum on December 7th, it could only hope that the legal experts it had assembled would provide a scholarly addendum to the recent Supreme Court decision. The panel included Prof. Adrian Vermeule ’93, who wrote a forward for the volume titled “System Effects and the Constitution,” Prof. Lawrence Lessig, Prof. Pamela S. Karlan of Stanford Law School, and Prof. Penny J. White of the University of Tennessee, Knoxville, who was formerly a Justice of the Tennessee Supreme Court.


Professor Richard Fallon, who moderated the panel, questioned whether it would be appropriate for a principled individual to change their vote to offset the vote of anothermember of a panel who was known to be biased. Prof. Vermeule said that this would fall under the rubric of what philosophers call a tragic choice, giving up objectivity and yet hoping for a miracle of aggregation to lead to the virtuous result. Prof. Karlan suggested that in this situation a judge should rely on the norm of sincerity and follow the position that their objective faculties show to be the correct one. Prof. Lessig expressed doubt as to whether the norm of sincerity has any real force in the decisions of a court. For Vermeule, this domain involves difficult questions of role morality, since if one member of a court has notably departed from the norm of sincerity and displayed bias, it has the capacity to influence the actions of the other members and the morality of the choices they make.

For Professor Karlan, the case was rightly decided not only because it was the correct application of the law, but also because once the Court granted certiorari it was put in a position of needing to take a moral stand against impropriety. The assertion of power by the Supreme Court to intervene in setting the standards for the conduct of judicial elections can serve as an important check against state legislatures, said Karlan. To Karlan, the standards for judicial elections have become so watered down that the people should reject them and adopt an alternative method of selecting judges. It seems that in the wake of Caperton the important legal and political questions revolving around judicial elections have become only more unsettled and yet more pressing and relevant.