In Williams v. Pennsylvania, the Supreme Court held that Judge Castille’s denial of a recusal motion violated the Due Process Clause of the Fourteenth Amendment. The problem was one of bias: In 1984, as a district attorney, Castille had approved a trial prosecutor’s request to seek the death penalty for Terrence Williams. In 2012, now a judge, Castille was asked to rule on a post-conviction stay of Williams’ execution. A 5-3 majority believed this to be unconstitutional.
Supporting its decision, the majority wrote, “A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case.” This argument evokes the common law principle that “no man can be a judge in his own case.” Chief Justice Roberts dissented, arguing that the majority had invented new law. Indeed, he argued, “The majority opinion rests on proverb rather than precedent.”
I suspect Williams, in a roundabout way, will have implications for administrative law.
The meaning of “intolerable” bias has changed dramatically between 1600 and the present. According to Roberts, “The common-law conception of a fair tribunal was a narrow one. A judge could not decide a case in which he had a direct and personal financial stake.” In all other situations, the biases of judges could not be challenged; “The law [would] not suppose a possibility of bias or favor in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”
In 2009, the Supreme Court case Caperton v. A.T. Massey departed from that precedent, holding that perceived bias, even without pecuniary interest, was a constitutionally compelled ground for disqualification. Williams expanded Caperton, creating a new constitutional rule for recusal: A judge who has had “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case must recuse.” This is not an unusual standard. As Richard Re observes, most states already have it on the books.
What is new is the constitutionalization of rules for recusal. What was once a statute—optional and subject to legislative discretion—is now a constitutional right under the Fourteenth Amendment.
There are good reasons to believe that this right will expand, that we will see additional rules for recusal. One reason is Williams’ artificially narrow holding: What does it mean for “involvement as a prosecutor” to be “significant” or “personal”? Another is the broad character of the majority’s reasoning. The principle that “no man can be a judge in his own case” is sweeping in scope. As is the majority’s statement, “bias is easy to attribute to others and difficult to discern in oneself.” The combination of a narrow holding with a broad principle suggests that the law will soon expand.
If rules for recusal expand, what will they affect? The following passage, from Gary Lawson, describes the ordinary function of an administrative agency, in this case the Federal Trade Commission:
The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigation into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission… If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court….
Here, the Commission acts a judge in its own case. The administrative agency writes its own rules, prosecutes alleged offenders, and tries those suspects in its own courts. Like Castille, the agency—a corporate person—has a “significant, personal involvement as a prosecutor.” Also like Castille, it plays a judicial role in deciding the case.
So some questions arise: Does a judge who is affiliated with the Commission have “significant, personal involvement” in the Commission’s cases? Do corporate persons, like the Commission, face the same tests for bias as human persons do? We’ll learn soon.
I have few opinions on Williams itself; I’m not sure if it was rightly or wrongly decided. But I am optimistic about its consequences. An expansion in the rules of recusal could rightly put pressure on our administrative agencies. That would be a win for the separation of powers.