Extreme Facts, Extraordinary Case: The Sui Generis Recusal Test of Caperton v. Massey

Engage Volume 12, Issue 1, June 2011

Speech during judicial campaigns and its ramifications on successful candidates’ judicial capacities has become an increasingly important issue in campaign speech regulation. In 2002, the United States Supreme Court recognized that judicial candidates’ right to announce their views during their campaigns was constitutionally protected. This principle has been expanded to include statements of political affiliation, personal solicitation and endorsements. Where such protections have gained less recognition is in the context of recusal. States across the nation have begun to include in their judicial codes the requirement that judges must recuse themselves for statements made during their campaigns that commit or appear to commit on issues likely to come before the court...