In a 1964 case, then-Supreme Court Justice Potter Stewart applied what he called his "Casablanca test." As a Navy lieutenant in World War II, Stewart had seen hard-core pornography that seamen had brought back to the ship from that North African city. As a result, Stewart wrote that while he could not precisely define obscenity, "I know it when I see it."
That recognizes a fact of life: It is not necessary to understand exactly where or when a line has been crossed to know that a particular example is egregious.
The Supreme Court said as much Monday when it ruled 5-4 that the chief justice of the West Virginia Supreme Court of Appeals should have recused himself in a case involving a man who had spent $3 million to get the judge elected.
The facts of the case the Supreme Court heard are not in dispute. In 2002, a jury found the A.T. Massey Coal Co. liable for $50 million in a lawsuit brought by a competitor, Hugh Caperton, who had accused Massey and its chief executive officer, Don Blankenship, of driving him out of business through underhanded and unlawful practices.
While that case was being appealed, Blankenship spent $3 million in a 2004 election to unseat one West Virginia Supreme Court justice and elect attorney Brent Benjamin in his place. The money helped fund a group that ran ads accusing the sitting justice of freeing pedophiles.
Benjamin won. He then cast the deciding vote in a 3-2 ruling overturning the verdict against Massey. He had been asked to recuse himself twice and refused. The case was so over-the-top it formed the inspiration for John Grisham's 2008 best-seller, The Appeal.
There is little in this that a layman could find confusing. Who would want to have a lawsuit decided by a judge in debt to the other side? Or, as former Bush administration solicitor general, Ted Olson, said in arguing for Caperton, "Would it be a fair tribunal if the judge in your case was selected with a $3 million subsidy by your opponent?"
The high court's majority agreed that by declining to recuse himself Benjamin had violated Caperton's right to due process of law. Writing for the majority, Justice Anthony Kennedy said, "There is a serious risk of actual bias - based on objective and reasonable perception - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing a judge on the case ... when the case was pending or imminent."
That would seem self-evident. Nonetheless, four members of the court, including Chief Justice John Roberts, dissented. Roberts objected that the ruling "fails to provide clear, workable guidance for future cases" and listed 40 questions he said were left unanswered.
Justice Antonin Scalia complained that while there are times judges should recuse themselves even though not required to by law, the court should not "correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule."
They have a point. This ruling does not offer a bright line to tell judges when to step aside.
But it is nonetheless important to know that there is a line. And a judge who so brazenly appears to be trading $3 million for a favorable verdict has crossed it.