Harvard Calling
“It’s hard enough to get an article published in the Harvard Law Review,” says law school dean Doug Blaze. “To have Harvard ask Penny White to write for them about a case decided by the United States Supreme Court is a huge honor that speaks well to her national reputation.”
The case, Caperton v. A.T. Massey Coal Co., decided in June, centered on whether a recently elected state supreme court justice should have recused himself from hearing the appeal of a $50 million verdict.
Following the initial verdict and prior to the appeal, the Massey CEO pumped $3 million into a state supreme court race that ultimately led to the unseating of the incumbent. When the case reached the state supreme court, the new justice refused to recuse himself from the case and cast the deciding vote to reverse the $50 million verdict. In a 5-4 opinion, Justice Kennedy said that in the interest of judicial independence, the justice should have recused himself.
White, now the Elvin E. Overton Distinguished Professor of Law and director of the UT College of Law’s Center for Advocacy and Dispute Resolution, has first-hand experience with the politicalization of judicial independence. In 1996 she became the first and only Tennessee Supreme Court Justice to lose a retention election, as a consequence of a campaign intimating that she had turned loose a man who raped and murdered a 77-year-old woman. While then Justice White did not write an opinion on that case, State v. Odom, she was a woman and the only justice up for election at the time. Contrary to the ads, White didn’t vote to turn loose Odom. The Supreme Court, in fact, unanimously affirmed Odom’s conviction. White did vote for a rehearing of the convicted killer’s death sentence, however, as did every other appellate judge who heard the case.
Nonetheless, campaign ads were aired on radio and mailed to thousands of Tennesseans urging them to oust Justice White “since she has never voted to uphold the death penalty.”
Actually, White had participated as a judge in only one other capital case in which the guilt of the perpetrator was at issue, and in that case she voted to uphold the death penalty. That case, however, was when she was on the Court of Criminal Appeals. Ironically, she didn’t even harbor an opinion for or against the death penalty at the time of the Odom case.
Although her ouster from the Tennessee court did not immediately change her opinion about capital punishment, it did create continuing national interest in her writings on judicial independence and death penalty issues.
White’s article on the Caperton case is scheduled to appear in the November issue of the Harvard Law Review. “The case reads like a John Grisham novel,” she says. “Caperton is one of the most important decisions of the Court this year and may eventually affect how states choose judges.”
Excerpted from “Disorder in the Courts,” an article by Dennis McCarthy scheduled to appear in the fall issue of Quest magazine, which highlights research, scholarship and creative activity at the University of Tennessee, Knoxville.