Constitutional Problem?

MR. OLSON: “A fair trial in a fair tribunal is a fundamental constitutional right. That means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal.”

In one of the key exchanges of the hearing, Frey said Due Process is purely to protect individual litigants, not the integrity of the courts—a position that seemed to trouble Kennedy, Stevens and others.

JUSTICE STEVENS: Are you saying that appearances without any actual proof of bias could never be sufficient as a constitutional matter?

MR. FREY: We are saying that the Due Process Clause does not exist to protect the integrity or reputation of the State judicial systems.

JUSTICE STEVENS: You don't think the community's confidence in the way judges behave is an important part of due process?

MR. FREY: No, I think it's -- it may be a systemically important value. But I think as long as the judge is impartial in the -- in the case at hand, I don't think there's a problem.

JUSTICE KENNEDY: But our whole system is designed to ensure confidence in our judgments.

MR. FREY: I think this is a side point.
 

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