Elected judges, funded campaigns
Most U.S. states elect at least some of their judges — and the money that funds those campaigns collides directly with the impartiality the robe is supposed to guarantee.
A judge who has to raise money to keep the job has an obvious problem when a donor’s case lands on the docket. The Supreme Court has recognized this only at the outer extreme — in a case where a coal executive spent more than $3 million to elect the judge who then cast a deciding vote to erase a $50 million verdict against his company. This page grades the doctrine and that anchor case as fact, and is careful about what it does and doesn’t prove.
What this page is about
The United States is nearly alone among major democracies in electing judges: roughly 38 states choose or retain at least some of their judges by election. Supporters say it makes the bench accountable to voters; critics note that it forces judges to raise campaign money — often from the very lawyers and interests who will appear before them — putting the appearance of impartiality that defines a court under constant strain.
The clearest illustration is Caperton v. Massey (2009). After a West Virginia jury hit Massey Coal with a $50 million fraud verdict, its CEO spent more than $3 million to help elect a justice to the state Supreme Court — who then refused to step aside and joined the 3–2 majority that threw the verdict out. The U.S. Supreme Court held, 5–4, that due process required his recusal. But Caperton drew the line only at the extreme; below it, judges still largely police their own conflicts while the money keeps flowing.
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Elected judges, funded campaigns.
Most U.S. states elect at least some of their judges — and the money that funds those campaigns collides directly with the impartiality the robe is supposed to guarantee.
The system, the case, and the line the Court drew
The U.S. is nearly alone: about 38 states elect at least some judges.
FACTRoughly 38 states choose or retain at least some of their judges through elections — partisan, nonpartisan, or retention votes — a practice almost unique among major democracies, where judges are typically appointed and insulated from campaigning. The rationale is democratic accountability; the cost is that judges must build campaigns and raise money, frequently from attorneys, litigants, and industries with business before their courts. That is a structural tension with the core promise of a court: that the person deciding your case has no stake in the outcome.
Caperton v. Massey: $3 million to elect a judge, then a $50 million verdict erased.
FACTIn 2002 a West Virginia jury awarded Hugh Caperton's coal company $50 million, finding that A.T. Massey Coal had fraudulently destroyed his business. While the appeal was pending, Massey's CEO, Don Blankenship, spent more than $3 million — roughly 3,000 times the legal maximum for a direct contribution, and more than all of Brent Benjamin's other supporters and his own campaign combined — to help elect Benjamin to the West Virginia Supreme Court of Appeals. When the case arrived, Benjamin refused Caperton's request to recuse and was part of the 3–2 majority that overturned the $50 million verdict. In Caperton v. Massey (2009), the U.S. Supreme Court ruled 5–4 that the Due Process Clause required Benjamin's recusal, because such 'extreme facts' create a 'probability of bias.'
Caperton set a floor, not a fix: judges still mostly decide their own recusal.
FACTCaperton drew a constitutional line only at the extreme — a 'probability of bias' from truly outsized spending. Below that high bar, judges in most states still rule on their own recusal motions, and money keeps pouring into judicial races, a trend the Brennan Center has tracked across cycle after cycle. So the everyday situation — a donor or a donor's lawyer appearing before a judge they helped elect — usually raises only an appearance problem the system leaves the judge to police. It is the same appearance-of-impartiality tension at the heart of the Judge Roy Altman case, arriving here through the ballot box and the checkbook rather than off-bench advocacy.
A thumb near the scale, by design
The robe, the recusal rules, and the bar on political activity all exist so litigants can believe the person deciding their case has no thumb on the scale. Electing judges and funding those campaigns puts a thumb near the scale by design — and Caperton shows the Court will step in only at the outer extreme, leaving the everyday conflicts to the judges themselves. It belongs in Judges & Prosecutors alongside the discipline funnel and the Altman case: another channel through which influence reaches the bench in the open, and another place the accountability tools stop short.
Questions worth taking seriously
Didn't Caperton fix the problem?
Only at the extreme. Caperton held that due process requires recusal when campaign spending is so large it creates a “probability of bias” — an unusually high bar. It didn’t touch the ordinary case of a lawyer or donor appearing before a judge they supported, and in most states judges still decide their own recusal motions. So the decision set a constitutional floor against the most egregious conflicts while leaving the routine appearance problems of an elected, donor-funded judiciary firmly in place.
Aren't elections a good way to hold judges accountable?
That’s the honest argument for them, and we don’t dismiss it — voters removing a bad judge is a real check, and appointment systems have their own problems (patronage, insularity). The tension we document is specific: elections require money, money comes from interested parties, and a judiciary’s legitimacy rests on the appearance that no such interest is on the scale. Both systems trade off different risks; this page is about the one elections carry.
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