In Williams v. Pennsylvania, the Supreme Court found that a prosecutor who decides to seek the death penalty in a case cannot, consistent with due process, later sit as a judge reviewing the defendant’s conviction in that case. As the Court put it, “Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias.” And Caperton v. A.T. Massey Coal Co., tells us that once the circumstances create an unacceptable risk of actual bias on the part of the average judge, game over—due process disqualifies the judge.
But the Court did not stop there. For some reason the Court brought appearances into the mix by stating that the unacceptable risk of actual bias in Williams “so endangered the appearance of neutrality that [Castille’s] participation in the case “‘must be forbidden if the guarantee of due process is to be adequately implemented.’” That sentence is absolutely unnecessary to the opinion. The Court’s factual finding that the circumstances created an unacceptable risk of actual bias rendered the appearance of those circumstances to the ordinary observer irrelevant. More importantly, the sentence directly ties the appearance of partiality to the protection afforded by the Due Process Clause. The Court’s statement may foreshadow a future opinion that constitutionalizes the American Bar Association’s appearance of partiality disqualification standard.
Many times the Court has loosely spoken of protecting the appearance of impartiality as an important state interest, but the Court has never held that due process protects appearances. Williams may lay the groundwork for such a decision. Most likely, the main stumbling block to the Justices constitutionalising appearance-based disqualification is that the new standard would apply to them.