At age 70, he acknowledges, “I’ve reached the point where it’s great fun giving an oral argument, but not much fun preparing for it.”
But Frey is preparing for what may be the biggest — and most unpopular — argument of his career set for March 3: Caperton v. A.T. Massey Coal Co. With 11 briefs on the other side from good-government groups like Public Citizen and Justice At Stake, Frey will represent Massey, a West Virginia coal company that has been accused, in effect, of buying a state Supreme Court justice through campaign donations while its case was pending before that court.
Arguing for the politically incorrect side “makes it more fun,” Frey says. “When people read my brief, they’ll say, ‘Wait a second, there’s more to this than I thought.’ There’s been a lot of knee-jerking about this case.”
The case is viewed by some as crucial to preserving — or restoring — the integrity of state judicial elections that are awash in special-interest money aimed at influencing the direction of state courts. Since judicial elections seem to be here to stay, reformers increasingly view recusal as the most practical mechanism to blunt the appearance or reality of undue influence. So they are asking the Court to lay down a constitutional rule to define when a campaign donation is so big that the judge who receives it must recuse.
In the case the justices will hear, the CEO of Massey Energy spent $3 million in 2004 to support Brent Benjamin for a seat on the West Virginia Supreme Court of Appeals, the state’s highest court. Benjamin won and refused to recuse when the court considered the appeal of a $50 million fraud verdict against Massey. Benjamin cast the deciding vote in a 3-2 decision overturning the verdict.
“If the Court does not find a due process violation under the facts of this case, state reform efforts may be weakened or even overcome by the Court’s implicit acceptance of the perceived and real threats to judicial impartiality raised by substantial campaign contributions like the ones in this case,” says a brief filed by the Constitutional Accountability Center on behalf of groups including Common Cause, the League of Women Voters, and the American Judicature Society.
Also arguing for donation-related recusals are 27 former state court judges and a range of corporations who assert that the influence of large campaign contributions is eroding confidence in state courts.
Frey will argue against all that, insisting that states can police their campaign ethics without federal guidance. “There’s no need to create a new due process right,” he says.
What’s more, Frey says, the due process standard urged on the Court by his adversaries is “utterly boundless.” Frey says his opponents’ test — whether the donation creates a “probability of bias” — could end up requiring judges to recuse when they could be said to owe “a debt of gratitude,” for example, to a newspaper that endorsed them. “It’s not a workable standard.”
FRIENDS OF FEDERALISM
Frey won’t be all alone when he argues the case. A handful of friend-of-the-court briefs have been filed on his side, including one by Alabama and six other states, making a strong federalism argument against a federal due process rule. Kevin Newsom of Bradley Arant Boult Cummings in Birmingham, Ala., authored the brief, cautioning against “an entirely new body of federal constitutional law to govern day-to-day recusal practice in state courts.” Groups on the other side say a federal standard will still allow states flexibility.
Federalism arguments may not be as well-received now as they were by the Rehnquist Court, and the justices have already said there is a federal role in overseeing state court fairness. But if the justices are looking for a way of avoiding the tricky task of setting a uniform due process standard, federalism could be the ticket.
Frey has been taking on tough cases since he first argued before the Supreme Court as a lawyer in the solicitor general’s office in October 1972. He developed a specialty in criminal cases, and thinks he helped the Burger Court “develop a theory, a coherent overview” of the meaning of the Fourth Amendment and how to rein in the exclusionary rule to “make the rule effective without being too costly.”
When he went to Mayer Brown in 1986, helping establish its early pre-eminence in Supreme Court practice, Frey helped guide the justices in another line of cases: punitive damages.
Frey argued or briefed many of the punitive damages cases on behalf of business defendants, slowly but surely nudging the Court toward placing constitutional limits on damage awards. “At the beginning, it wasn’t clear there was any review of punitive damages,” Frey says. It’s been a long campaign, and it’s not over yet. “They’re headed generally in the right direction,” he says, adding, “It’s very exciting in a frontier area to be a repeat player — you get the chance to develop a theory and educate the Court over a series of cases.”
At the Supreme Court lectern, Frey can sometimes come across like a teacher — and an impatient one at that. He acknowledges that “I have a tendency to start answering questions before they finish asking them.” But he says, “I don’t mean to show impatience. I have a lot of respect for them and their questions.” Frey, who was interviewed in early February, does recall arguments where “Ruth Ginsburg can try one’s patience,” such as the time during arguments in BMW v. Gore — a punitive damages landmark — when Ginsburg would not relent in asking him if the question before the Court had been preserved in the case’s earlier stages.
Frey’s adversary in the Massey case will be another advocate with a commanding style before the Court: Theodore Olson of Gibson, Dunn & Crutcher, who has argued 52 cases before the Court and has also been a major repeat player affecting the Court’s punitive damages jurisprudence.
Olson argued in a 1986 case that was the last major Supreme Court ruling on judicial recusal, and he took on the representation of Hugh Caperton in the Massey case to argue again for fair courts. “To the extent that any litigant — a company or an individual — feels that they have to participate in a campaign to get a fair hearing, that’s not good,” Olson says.
Frey and Olson are scheduled to square off again in April in a much lower-profile municipal tax case, Polar Tankers v. City of Valdez.
Until the Massey argument, Frey will prepare the way he always does, by writing down every question he can think of that the justices might ask. The list can run 10 or 15 pages long. Then he sits down with others to come up with the best answers.
As much as he prepares, though, Frey says, “They still surprise.” Justices Stephen Breyer or John Paul Stevens — or any justice except the silent Clarence Thomas — can hit him with a question he did not anticipate. That challenge helps him keep his edge. “I’m still going strong,” he says.