What everybody knows and what too few accept

Harvard Law Review

Volumn 123, Issue 1, 2009, Pages 104-119

  Lessig Law, Lawrence ^a   Safra, Edmond J ^b  

^a HARVARD LAW SCHOOL   (United States)

^b HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 76349093607     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (90)

1. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2257 (2009).
2. See id.
3. See James V. Grimaldi, Microsoft Trial -Probe Has Cost Government $13.3 Million, SE-ATTLE TIMES, Oct. 6, 1999, at Ai, available at http://community.seattletimes.nwsource.com/ archive/?date=19991006&slug= 2987296 (concluding Microsoft spent more than the government did).
4. John Sullivan, Court Act May Clear Hundreds of Youths, PHILA. INQUIRER, Mar. 27, 2009, at Ai.
5. See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) ("[Campaign] contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities."). The Court explained these First Amendment freedoms by noting that: A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by re-stricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. Id. at 19 (footnote omitted).
6. See Caperton, 129 S. Ct. at 2258.
7. See REBECCA BILL CHAVEZ, THE RULE OF LAW IN NASCENT DEMOCRACIES 23-24 (2004) ("Many scholars mistakenly limit their analysis [of Latin American courts] to formal guar-antees of judicial autonomy. Actual practices may illustrate that the formal institutions are mere façades that hide subordination of the courts." (footnote omitted));
8. Robert D. Cooter & Wolfgang Fikentscher, Indian Common Law: The Role of Custom in American Indian Tribal Courts (pt. I), 46 AM. J. COMP. L. 287, 318 (1998) ("Separation of powers at the level of the trial court achieves formal independence for judges. In reality, however, the influence of the tribal council and chairman upon judges varies from one tribe to another, and from one historical period to an-other. . . . The extent to which . . . tribal politicians can influence judges depends in part upon formal laws for removing judges, and in part upon informal traditions and personalities.");
9. cf. Renée Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42 WM. & MARY L. REV. 195, 197 (2000) ("Much has been made of the independence of juries in Amer-ica's early history. But it is not so well understood that this formal independence coexisted with a large amount of informal influence by the judge on the jury.").
10. See, e.g., CHAVEZ, supra note 7, at 23 ("In order to determine the degree of judicial auton-omy in a given country, a consideration of informal practices must accompany the analysis of the formal rules outlined in national constitutions."); Sida Liu, Beyond Global Convergence: Conflicts of Legitimacy in a Chinese Lower Court, 31 LAW & SOC. INQUIRY 75, 91-94 (2006) (examining the influence of administrative hierarchy on the Chinese judiciary and arguing that informal in-fluences over judicial decisionmaking undermine due process in Chinese courts far more than do formal, institutional factors).
11. See Stephen B. Bright, Can Judicial Independence Be Attained in the South? Overcoming History, Elections, and Misperceptions About the Role of the Judiciary, 14 GA. ST. U. L. REV. 817, 819-822 (1998).
12. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE LJ. 421, 424 (1960).
13. 1l As one report put it, "Between 1999 and 2007, candidates for America's highest courts have raised over $165 million, a remarkable jump from the $62 million raised between 1993 and 1998." JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF JUDICIAL ELECTIONS IN THE GREAT LAKES STATES, 2000-2008, at 3 (Jesse Rutledge ed., 2008).
14. The three public funding states -Arizona, Maine, and Connecticut -are the exception. See BRENNAN CTR. FOR JUSTICE ET AL., BREAKING FREE WITH FAIR ELECTIONS: A NEW DECLARATION OF INDEPENDENCE FOR CONGRESS I (2007);
15. Kenneth R. Mayer & Timothy Werner, Electoral Transitions in Connecticut: The Implementation of Clean Elections in 2008, at I (Aug. 29, 2007) (unpublished manuscript, on file with the Harvard Law School Library).
16. See Jonathan S. Krasno & Frank J. Sorauf, Report, Evaluating the Bipartisan Campaign Reform Act (BCRA), 28 N.Y.U. REV. L. & SOC. CHANGE 121, 167-68 (2003)
17. (discussing the esca-lating costs of campaigns for federal office and the financial obstacles faced by potential candi-dates); Joanna M. Shepherd, Money, Politics, and Impartial Justice, 58 DUKE LJ. 623, 642 (2009) (concluding from empirical studies that "[t]he cost of supreme court campaigns . . . has risen so dramatically that it is often difficult, if not impossible, for candidates to win elections without substantial funding").
18. See Richard Briffault, Public Funding and Democratic Elections, 148 U. PA. L. REV. 563, 563-64 (1999) ("A tiny number of very wealthy individuals have enormous influence over the fi-nancing of election campaigns, and, ultimately, on the elections themselves. Large campaign dona-tions and candidates' dependence on those donations for the funds necessary to fuel their cam-paigns provide major donors with opportunities for special access to elected officials.");
19. Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 COLUM. L. REV. 1126, 1126-27 (1994) ("Our elected representatives are so indebted to the special-interest donors on whom they depend for their political existence that they are losing their ability to provide their best judgment in representing the citizens who elected them.").
20. Professor Richard Briffault has remarked upon the tension between private campaign dona-tions and constitutional norms: Less than one-tenth of 1% of the population provides 36% of all individual donations to candidates. Nor is this group demographically or politically representative of the rest of the electorate. Private funding gives the affluent a disproportionate role in election campaigns and is, thus, in tension with the norm of one person, one vote.
21. Richard Briffault, Reforming Campaign Finance Reform, 91 CAL. L. REV. 643, 645-46 (2003) (footnotes omitted) (reviewing BRUCE ACKERMAN & IAN AYRES, VOTING WITH DOLLARS (2002));
22. see Wertheimer & Manes, supra note 14, at 1126-1127 (arguing that private donations to election campaigns have produced results contrary to our concept of a representative democracy).
23. See Timothy A. Canova, Campaign Finance, Iron Triangles and the Decline of American Political Discourse, 12 NEXUS 57, 65-66 (2007) ("Th[e] flood of money that continues to pour into election campaigns should raise concerns about the integrity of our governing institutions and public policies. Instead of liberal pluralism, we have . . . captured governments and iron triangles that serve narrow private interests while excluding the unorganized and general public from the processes of policymaking."); Shepherd, supra note 13, at 639 ("If . . . judicial elections profoundly and pervasively influence how judges decide cases, then judicial impartiality is lost.").
24. Polling by Global Strategy Group conducted March 4-5, 2008 (on file with the Harvard Law School Library).
25. See CAMPAIGN ASSESSMENT & CANDIDATE OUTREACH PROJECT, CANDIDATES DE-VOTE SUBSTANTIAL TIME AND EFFORT TO FUNDRAISING (2000), http://www.bsos.umd. edu gvpt/herrnson/reporttime.html.
26. Cf. Chris W. Bonneau, Patterns of Campaign Spending and Electoral Competition in State Supreme Court Elections, 25 JUST. SYS. J. 21, 24-26 (2004) (showing from empirical data that, between 1990 and 2000, campaign spending in state supreme court elections increased significantly).
27. See, e.g., MARTIN SCHRAM, SPEAKING FREELY: FORMER MEMBERS OF CONGRESS TALK ABOUT MONEY IN POLITICS 62 (1995) ("People who contribute get the ear of the member and the ear of the staff. They have the access -and access is it. Access is power. Access is clout. That's how this thing works . . . ." (quoting former Congressman Romano Mazzoli)).
28. See Briffault, supra note 14, at 579-83 (discussing the detrimental effects of private cam-paign funding on voter perceptions and the legitimacy of government action); see also FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 208 (1982) (noting "the importance of preventing both the actual corruption threatened by large financial contributions and the eroding of public confi-dence in the electoral process through the appearance of corruption").
29. Professor Richard Hall has written: Among Washington activists, the prospects for effective campaign finance reform have often cycled between cautious optimism and deep disillusionment. The general public has been more steadfastly cynical, their democratic sensibilities deadened by the ever more remarkable sums of money raised and spent by private interests on public campaigns with each new election. Surely, all that money must be buying elections, bribing legislators, or biasing legislation in some way -purchases that "special inter-ests" but not rank and file voters can afford. Viewed in this light, the hallowed democ-ratic principle of "one person, one vote" loses its normative luster. Richard L. Hall, Equalizing Expenditures in Congressional Campaigns: A Proposal, 6 ELECTION L.J. 145, 145 (2007) (footnote omitted); see also Wertheimer & Manes, supra note 14, at 1127 ("The pervasive dependence of elected officials on special-interest money is central to the crisis in public confidence that faces our government today. The public's belief that its interests are not being served in Washington is a direct reflection of the way in which monied interests and the pursuit of political-influence money by elected officials have become dominant forces in our political life.").
30. One national survey concluded that more than 75% of U.S. citizens believe that "campaign contributions influence judicial decisions." James Sample, Editorial, Justice for Sale, WALL ST. J., Mar. 22, 2008, at A24 (citing Greenberg Quinlan Rosner Research, Inc. & Am. Viewpoint, Jus-tice at Stake Frequency Questionnaire 4 (2001)). A study by the National Center for State Courts found that 78% of respondents strongly or somewhat agreed with the statement that "elected judges are influenced by having to raise campaign funds." NAT'L CTR. FOR STATE COURTS, HOW THE PUBLIC VIEWS THE STATE COURTS 42 (1999). These beliefs are not unfounded: one recent empirical study of campaign contributions and elected state supreme courts concluded that "there is a strong relationship between campaign contributions and judges' voting." Shepherd, supra note 13, at 669.
31. See, e.g., Frank B. Cross, What Do Judges Want?, 87 TEX. L. REV. 183, 202 (2008) (review-ing RICHARD A. POSNER, HOW JUDGES THINK (2008)) ("Empirical evidence of apparently po-litical decision making at the Supreme Court level is extensive.");
32. Ran Hirschl, Resituating the Judicialization of Politics: Bush v. Gore as a Global Trend, 15 CAN. J.L. & JURIS. 191, 217 (2002) ("Constitutional scholars, legal practitioners, and political activists critical of the U.S. Supreme Court's crucial role in determining the outcome of the 2000 presidential election, regard the Bush v. Gore saga as the most glaring example of the judicialization of politics in the United States.").
33. For an example of one such characterization of the Court, see John O. McGinnis & Charles W. Mulaney, Judging Facts Like Law, 25 CONST. COMMENT. 69 (2008), noting that "[w]hen so-cioeconomic elites favored laissez-faire, the Supreme Court ruled in favor of economic liberties, and now when elites favor sexual autonomy, the Court rules in favor of rights to abortion and same-sex conduct," id. at 107 (footnote omitted).
34. For a discussion of the general difficulties faced by courts in addressing complex, "polycen-tric" problems, see Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 394-404 (1978).
35. For an example of a critique of generalizations in Supreme Court jurisprudence, see Ezra Rosser, Ambiguity and the Academic: The Dangerous Attraction of Pan-Indian Legal Analysis, 119 HARV. L. REV. F. 141 (2006), http://www.harvardlawreview.org/forum/issues/119/ deco5/rosser.pdf, which argues that the Supreme Court improperly ignores distinctions between tribes in its Indian law cases.
36. See, e.g., Anne C. Mulkern, Utility PACs Generous to Key Lawmakers in Climate Debate, N.Y TIMES ON WEB, July 27, 2009, http://www.nytimes.com/gwire/ 2009/07/27/27greenwire-utility-pacs-generous-to-key-lawmakers-in-clim-54282. html (quoting commentators critical of util-ity firms' campaign contributions and their impact on recent energy legislation);
37. Editorial, De-vices for Lawyers, WALL ST. J., Aug. 13, 2008, at A16 (criticizing Congress for being beholden to contributions from plaintiffs' lawyers).
38. See Jeffrey M. Jones, Trust in Government Remains Low, GALLUP, Sept. 18, 2008, http://www.gallup.com/poll/110458/trust-government-remains-low.aspx.
39. Caperton, 129 S. Ct. at 2262-2263
40. See, e.g., Press Release, Harris Poll, Very Large Majorities of Americans Believe Big Com-panies, PACs, Political Lobbyists and the News Media Have Too Much Power and Influence in D.C. (Mar. 12, 2009), available at http://www.harrisinteractive.com/harris-poll/pubs/Harris-Poll-2009-03-12.pdf.
41. Transcript of Oral Argument at 11, Caperton, 129 S. Ct. 2252 (2009) (No.08-22), available at http://www.supremecourtus.gov/oral-arguments/argument- transcripts/08-22.pdf
42. See Lori A. Ringhand, "I'm Sorry, I Can't Answer That": Positive Scholarship and the Su-preme Court Confirmation Process, 10 U. PA. J. CONST. L. 331, 356-59 (2008) (questioning the view that it is the Justices' duty to interpret the Constitution the way "they -not the President who nominated them, the Senate that confirmed them, or the public to whom those actors answer - think best," id. at 357).
43. See Bruce Fein, Commentary, A Circumscribed Senate Confirmation Role, 102 HARV. L. REV. 672, 672 (1989) ("Judge Bork's nomination [to the Supreme Court] was irreproachable. . . [T]he mere fact that Judge Bork's judicial philosophy coincided with certain objectives sought by [conservative constituencies] does not prove that he was selected to please them. It is equally plausible that President Reagan wanted to leave as part of his legacy an exceptionally talented jurist who shared his view of the proper judicial role.").
44. Indeed, such deference has developed for those of an analogous status: heads of state. See Jerrold L. Mallory, Note, Resolving the Confusion over Head of State Immunity: The Defined Rights of Kings, 86 COLUM. L. REV. 169, 179-181 (1986).
45. -505 U.S. 833 (1992).
46. -410 U.S. 113 (1973).
47. See Casey, 505 U.S. at 871 (joint opinion of O'Connor, Kennedy, and Souter, JJ.) ("We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest [in protecting the potentiality of human life] came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions."); id. at 869 (majority opinion) ("A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of . . . profound and unnecessary damage to the Court's legitimacy . . . ." (emphasis added)).
48. Id. at 864. 39 416 U.S. 600(1974).
49. Casey, 505 U.S. at 864
50. (quoting Mitchell, 416 U.S. at 636 (Stewart, J., dissenting)).
51. -129 S' Ct. 2252 (200g).
52. See id. at 2256.
53. See id. at 2265 ("Our decision today addresses an extraordinary situation where the Consti-tution requires recusal. . . . The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.").
54. See id. at 2259 (noting that the emergence of "new problems" led the Court to identify cir-cumstances requiring recusal in addition to the common law rule); see also JAMES SAMPLE, DAVID POZEN & MICHAEL YOUNG, BRENNAN CTR. FOR JUSTICE, FAIR COURTS: SETTING RECUSAL STANDARDS 10-12 (2008), available at http://www.brennancenter.org/content/resource/ fair-courts-setting- recusal-standards.
55. Cf., e.g., Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion).
56. See Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 130.
57. See Caperton, 129 S. Ct. at 2252, 2262-2265
58. -273 U.S. 510 (1927).
59. Caperton, 129 S. Ct. at 2260 (
60. quoting Tumey, 273 U.S. at 532).
61. This framing was suggested to me by Steven G. Calabresi, The Tradition of the Written Constitution: A Comment on Professor Lessig's Theory of Translation, 65 FORDHAML. REV. 1435 (1997).
62. Cf. Tom R. Tyler & Kenneth Rasinski, Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular U.S. Supreme Court Decisions: A Reply to Gibson, 25 LAW & SOC'Y REV. 621, 622-23 (1991) (citing studies showing broad public acceptance of unpopular Supreme Court decisions because the public perceives the Court as institutionally fair).
63. But cf. Barry Friedman, The History of the Countermajoritarian Difficulty, Part II: Reconstruction's Political Court, 91 GEO. L.J. I (2002) (detailing the unpopularity of the Supreme Court during Reconstruc-tion, which led to congressional threats of repeal).
64. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 355-57 (1819) (observing that Con-gress, not the judiciary, must weigh congressional enactments to determine whether they are "nec-essary" under the Necessary and Proper Clause);
65. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 131 (1810) (holding that the judiciary cannot interfere with the legislative process);
66. Marbury v. Madi-son, 5 U.S. (1 Cranch) 137, 165-70 (1803) (describing the "political question" doctrine);
67. THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 11-15 (1992) detailing the Marshall Court's deference to the executive in foreign affairs);
68. Robert N. Clinton, There Is No Federal Su-premacy Clause for Indian Tribes, 34 ARIZ. ST. L.J. 113, 187 (2002) (detailing the Marshall Court's deference to the executive in relations with Native Americans);
69. see also Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004) (plurality opinion) (collecting cases holding an issue nonjusticiable);
70. Baker v. Carr, 369 U.S. 186, 215 n.43 (1962) (suggesting limits to "political question" deference).
71. See, e.g., Linda Greenhouse, Both Sides in Abortion Argument Look Past Court to Political Battle, N.Y. TIMES, Apr. 20, 1992, at Ai.
72. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992) ("Whether or not a new social consensus is developing on [the abortion] issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe's essential holding under the existing circumstances would address er-ror, if error there was, at the cost of both profound and unnecessary damage to the Court's legiti-macy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.").
73. See Caperton, 129 S. Ct. at 2259-2260 (discussing Tumey's conclusion that the Due Process Clause incorporates a concern about judges' pecuniary interests).
74. See id. at 2269-2272 (Roberts, C.J., dissenting) (enumerating forty concerns and potentially unadministrable situations that the Caperton rule creates). While I believe the Chief Justice exag-gerated some of the uncertainty in his charge against the Court's opinion, I do agree with his con-clusion. His perspective is less focused than mine on the relationship between the result and a vision of judicial role.
75. Cf. id. at 2272 ("Every one of the 'Caperton motions' or appeals or §1983 actions will claim that the judge is biased, or probably biased, bringing the judge and the judicial system into disrepute.").
76. The strongest argument in favor of the rule in Caperton parallels the argument in favor of Justice Souter's refusal to weigh industry-funded research in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). In that case, the Court drew attention to research that had been funded by Exxon, only to signal that it was "declin[ing] to rely on it." Id. at 2626 n.17. The consequence of such a rule is to reduce the expected return from such research, possibly reducing the likelihood that it will be produced. Likewise with the Caperton rule: the mere probability that a judge would be forced to recuse himself because of significant campaign contributions would obviously significantly reduce the value of large contributions. That in turn may reduce the number of such contributions, and lessen any pressure on the rule since fewer possible claims would be presented.
77. The four dissenting Justices, no less than the majority, acknowledged the importance of ju-dicial independence. See Caperton, 129 S. Ct. at 2267 (Roberts, C.J., dissenting) ("I, of course, share the majority's sincere concerns about the need to maintain a fair, independent, and impar-tial judiciary -and one that appears to be such."). The disagreement between the Justices was rather over whether judicial independence could best be preserved by hard-to-define standards backed up by the Constitution's Due Process Clause. In the dissenters' view, this approach was sure to lead to an increase in allegations of judicial bias and, in the end, to do "far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Id.
78. The discipline of federal and state judges is typically a matter for investigatory commissions and often involves elaborate procedures. For example, anyone who believes a federal judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" may file a complaint. 28 U.S.C. §351 (2006). The chief judge of the relevant circuit then reviews the complaint. Id. §352. Unless the chief judge finds the complaint to be without merit or no longer relevant, he or she must appoint a special committee of judges to investigate the matter further. Id. §§352(b), 353. A dissatisfied complainant or judge may petition the judi-cial council of the circuit to review an unfavorable final order issued by the chief judge. Id. §352(c). The special committee must conduct an investigation and then file a report with the ju-dicial council, which may investigate the allegations further, dismiss the complaint, discipline the judge, or refer the matter to the Judicial Conference of the United States, which may consider more severe measures, such as recommending impeachment to the House of Representatives. Id. §§354-355. These proceedings are governed by detailed rules promulgated by the Judicial Con-ference.
79. See generally JUDICIAL CONFERENCE OF THE U.S., RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS (2008), available at http://www. uscourts.gov/library/judicialmisconduct/jud-conduct-and-disability-308-app-B- rev.pdf.
80. For a careful account of the ways in which legal intervention may undermine autonomous, community-based remedies, see ERIC A. POSNER, LAW AND SOCIAL NORMS 219-22 (2000). While Professor Posner's focus is on communities outside of the law, one might suspect his conclu-sions would carry over to communities (like bar associations) within the law. In any case, one cannot assume, as the Court did, see Caperton, 129 S. Ct. at 2266-2267, that adding a constitutional layer to judicial ethics will not affect the work of legal communities. If Posner is correct, it could well weaken it.
81. It was two colleagues -district judges sitting within the same circuit -who filed the com-plaint that ultimately led to the removal of Judge Alcee Hastings from the bench. See In re Complaints of Judicial Misconduct, 9 F.3d 1562, 1564 (U.S. Jud. Conf. 1993) (citing In re Certain Complaints Under Investigation by an Investigating Comm. of the Judicial Council of the Elev-enth Circuit, 783 F.2d 1488, 1492 (11th Cir. 1986)). Federal law further encourages the judiciary to police its own by granting circuit court chief judges the authority to commence disciplinary investigations on their own initiative even though no one has filed a written complaint. 28 U.S.C. §351(b). In one extraordinary example of self-policing, Chief Judge Alex Kozinski of the Ninth Circuit identified a complaint of judicial misconduct against himself and requested further inves-tigation. See In re Complaint of Judicial Misconduct, No.08-90035 (9th Cir. filed June 16, 2008), available at http://www.ce9. uscourts.gov/misconduct/orders/08-90035.pdf.
82. Most prominently, the American Bar Association Center for Professional Responsibility has developed and maintained the Model Code of Judicial Conduct and Model Rules for Judicial Dis-ciplinary Enforcement. See Am. Bar Ass'n Ctr. for Prof'l Responsibility, Judicial Ethics and Regulation, http://www.abanet. org/cpr/judicial/home.html (last visited Oct. 3, 2009). These mod-els have had a tremendous influence on state norms for judicial behavior.
83. See, e.g., Howland W. Abramson & Gary Lee, The ABA Model Code Revisions and Judicial Campaign Speech: Constitu-tional and Practical Implications, 20 TOURO L. REV. 729, 731 (2004) ("[N]early all of the states have adopted some version of the ABA Model Code of Judicial Conduct.").
84. Professor Frederick Schauer has suggested that a desire for popularity might play a rather large role in judicial decisionmaking: It is widely recognized that reputation or esteem provides a powerful money-independent incentive for many people. Perhaps the Justices of the Supreme Court, like the rest of us, care about their reputation, care about the esteem in which they are held by certain reference groups, and care enough such that, at the margin or even far from the margin, they seek to conform their behavior to the demands of the relevant esteem-granting (or -withholding) or reputation-creating (or -damaging) groups. Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. CIN. L. REV. 615, 629 (2000) (footnote omitted). My point here is simply that reputational concerns offer a significant reason for judges to behave ethically. To the extent that reputational concerns do so, they perform a valuable systemic function. SS Brief of the States of Alabama et al. as Amici Curiae Supporting Respondents at 17, Caper-ton, 129 S. Ct. 2252 (2009) (No.08-22), available at http://www.abanet. org/publiced/preview/ briefs/pdfs/07-08/08-22-RespondentAmCu7States.pdf.
85. The Court acknowledged states' "vital" interest in developing and enforcing their own rules governing judicial behavior, Caperton, 129 S. Ct. at 2266, but reserved for itself the right to inter-vene at any time if it deems the state not to have preserved sufficient levels of judicial integrity. Id. at 2266-2267
86. One recent example would be the Breyer Committee Report, which was the result of an in-vestigation undertaken in response to requests by Chief Justices Rehnquist and Roberts after members of Congress alleged that judicial ethical standards were being inadequately enforced. See JUDICIAL CONDUCT AND DISABILITY ACT STUDY COMM., IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980: A REPORT TO THE CHIEF JUSTICE I (2006), available at http://www. supremecourtus.gov/publicinfo/breyercommitteereport.pdf.
87. The Court, however, showed no interest in rebuking Justice Benjamin for his poor judg-ment. To the contrary, the majority seemed only to commend Justice Benjamin for his "careful" response to the recusal motions, Caperton, 129 S. Ct. at 2262 (emphasis added), "probing search into his actual motives and inclinations," id. at 2263 (emphasis added), and "extensive, search for actual bias," id. at 2265 (emphasis added). This commendation is especially remarkable given that such introspection is not an adequate discharge of a judge's duties under any applicable standard for recusal. See id. at 2265
88. ("Due process 'may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.'" (quoting In re Murchison, 349 U.S. 133, 136 (1955))); id. at 2266 (describing West Virginia's similar standards for judicial disqualification).
89. It is hard to know in advance what prominence the "Caperton claim" will come to have within "the vast arsenal of lawyerly gambits." Id. at 2274 (Scalia, J., dissenting). But it does seem that Caperton provides a greater opportunity for strategic accusations than the institutions al-ready in place. As noted earlier, a complaint alleging judicial misconduct becomes a matter for other judges to investigate. This process occurs outside the adversarial system and outside the proceedings of any particular case.
90. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).