How Due Process Protects Against Judicial Bias

Unbiased judges are a key component in protecting against due process violations in the judicial system. Trial judges must apply the law impartially and maintain objective standards.

The Fifth Amendment‘s due process clause requires the federal government to follow certain processes before depriving a person of life, liberty, or property. The Fourteenth Amendment then extended this due process right to all states. In criminal cases, due process includes the right to a fair trial.

However, this does not mean judges, as decision-makers on a particular case, are not at risk of actual bias. This article explores the importance of due process, particularly in criminal trials. We also explore the importance of disqualification and recusal in maintaining the judiciary‘s impartiality.

Identifying Judicial Bias

The cases below illustrate the U.S. Supreme Court‘s responses to issues of partiality within state courts. They scrutinize the dangers of actual bias, as well as the perception of bias, and their impact on the decisions of the trial courts.

Financial Interest

Judicial impartiality is often questioned when the judge overseeing the proceedings has a vested economic interest in the case’s outcome.

In Tumey v. Ohio, the Court found that a criminal defendant’s constitutional rights were violated because the trial court judge had a pecuniary interest in the trial’s outcome. In this case, the judge received a percentage of the fines levied against convicted defendants. More convictions resulted in greater compensation for the judge. The Court held that a financial interest in the trial’s outcome could affect the judge’s impartiality, regardless of the strength of the evidence.

In Ward v. Monroeville, the Court took this conclusion further. In this case, the town’s mayor was also a judge. Although the mayor did not personally benefit from court costs, the Supreme Court held that prejudice could still arise. A substantial portion of fines, forfeitures, and fees contributed to the town’s finances. Therefore, the Court found it was inappropriate for the mayor, who is in charge of revenue, to become the trier of fact.

Criminal Contempt

A judge may find a party or their lawyer in contempt if they fail to follow the Court’s orders or behave unruly while in the courtroom. For example, a judge may issue a gag order in cases involving high-profile defendants. This restricts parties from making public statements or sharing case details with the media to protect the integrity of the proceedings. Juries are susceptible to bias when exposed to inadmissible information. The jury should only contemplate admitted evidence rather than take sides based on the Court of public opinion.

In Mayberry v. Pennsylvania, a criminal defendant representing himself made slanderous remarks, disrupted jury instructions, and was unruly throughout his criminal trial. The trial judge found Mayberry guilty of contempt on 11 of the 21 days of trial and sentenced him to up to 22 years for the contempt alone.

The Supreme Court found that “no one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” The defendant, in this case, went beyond mere distractions. Instead, the Court found Mayberry used “fighting words.”Judicial officers are not so sensitive that they need to recuse themselves from every insult thrown their way to prevent the appearance of bias in a heated dispute. However, the Court determined that a different judicial officer should preside over the contempt proceedings.

In another case, In re Murchison (1955), the Court found a “one-man judge-grand jury” violated a criminal defendant’s due process. A Michigan law allowed judges to act as a one-person grand jury. Witnesses testify before a grand jury in secret to help determine whether there is probable cause to charge someone with a crime.

The judge in Murchison believed one grand jury witness had committed perjury. Another stopped answering the judge’s questions and invoked his right to counsel. The judge charged both witnesses with contempt and presided over their trials.

The Supreme Court found that this violated due process. The defendant did not have any public witnesses to cross-examine. Moreover, because grand jury proceedings are secretive, the judge became a material witness. This further denied the defendant the right to cross-examine him because the judge was also the trier of fact. The Court concluded, “No man can be a judge in his own case.”

Campaign Contributions

The process of appointing federal judges differs from the process of electing state judges. Article II of the Constitution states that the president nominates federal judges who the U.S. Senate then confirms. Such judges include:

• Supreme Court justices

• Federal appellate judges

• Federal district court judges

On the other hand, the process to become a state court judge varies by jurisdiction. People can become judges through:

• Appointment by the governor

• Partisan and non-partisan elections

• State legislative elections

The election process requires judicial officers to balance what is reasonable and acceptable as a campaign contribution or expenditure. In Caperton v. A.T. Massey Coal Co., Inc., the Supreme Court found that due process requires recusal when there is a strong likelihood of actual bias based on a defendant’s contributions to a judge’s campaign.

Here, before filing an appeal, a party contributed $3 million in a judicial election toward a specific candidate who beat an incumbent justice on the West Virginia Supreme Court by less than 50,000 votes.

The Court found the contribution had a significant and disproportionate influence on the election outcome. Additionally, it was reasonably foreseeable the case would go on review before the newly elected justice. Given the appearance of bias that political expenditures can secure a judge on a particular case, this warranted a recusal motion.

Judicial Disqualification and Recusal

Case law may use disqualification and recusal interchangeably. Generally, recusal is voluntary. Disqualification occurs when a party’s lawyer raises concerns about a judge’s impartiality and files a motion to remove them from a particular case. For example, when the judge or a family member has a financial interest in the case’s outcome and has not divested these investments.

The American Bar Association‘s (ABA) Model Code of Judicial Conduct specifies the ethical standards and rules that should guide judicial conduct. It consists of principles known as canons and rules that carry disciplinary actions if not followed.

For example, Canon 2, Rule 2.11 on disqualification outlines circumstances that raise questions of impropriety. A judge’s disqualification is appropriate in the following instances where a reasonable person could question the judge’s impartiality:

• The judge is a material witness or has personal knowledge about the case at hand

• The judge has made a public statement indicating how they will rule on particular issues before the Court

• The judge or a family member has a financial interest in the proceeding

• The judge has a close personal relationship or friendship with one of the parties or their lawyer

Additionally, federal judges abide by the Code of Conduct for United States Judges. Similar to the ABA, this code includes guidance on how to perform judicial duties. Further, it outlines restrictions on extrajudicial activities judges should refrain from while elaborating on permissible law-related activities such as teaching, consulting, and membership in certain organizations.

Examples of prohibited behavior include:

• Holding an officer position in a political organization

• Working as a mediator or arbitrator outside of official duties without authorization

• Engaging in business transactions with lawyers or parties that are likely to appear on the judge’s docket

It’s important to note that actual bias is not needed for a recusal or disqualification to be appropriate. Judges also must avoid the appearance of impropriety.

Supreme Court Code of Ethics

While state and federal judges have a code of conduct, the Supreme Court did not have its own ethical code until November 2023. This undermined public confidence in the judicial branch, particularly after the controversial revelation of undisclosed gifts.

Despite this change, critics still highlight the code’s lack of enforcement authority. After all, the Supreme Court self-regulates. And unlike the lower federal courts, Supreme Court justices are not replaced if they recuse themselves. So, as a practical matter, a recusal could result in a tie vote.

The lack of disclosure regarding gifts from wealthy benefactors has given rise to public outcry about the appearance of impropriety among the Supreme Court justices. The overturning of decades-long precedents in abortion and the use of affirmative action in college admissions also raised concerns. This led impacted litigants and members of the public to call for stricter disqualification standards to avoid the implication of bias in judicial decisions.

The Supreme Court’s new code largely copies the one used by other federal judges. However, it’s unclear how potential violations would be enforced.