[4] McGraw further damaged his campaign during a speech at the 2004 United Mine Workers of America's Labor Day rally in Racine, West Virginia in which he alleged that Republican operatives were following him "looking for ugly".

Starcher also refused to withdraw from the case, prompting a lawsuit from Massey Energy over the West Virginia Supreme Court's recusal procedures.

[4] Around the same time, Justice Spike Maynard (who had also been part of the 3 to 2 majority) recused himself when photos of him vacationing with Blankenship in the French Riviera while the case was pending appeared in the media.

Applying that test, Justice Kennedy ruled for the Court that "Blankenship's significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—"' "offer a possible temptation to the average .

In a vigorous dissent, Chief Justice Roberts wrote that the majority decision would have dire consequences for "public confidence in judicial impartiality.

In an effort to demonstrate that "probability of bias" is an unclear and unworkable standard which gives no guidance to lower courts, Chief Justice Roberts' dissent posed forty questions about the scope of the decision, including how large of a contribution should be considered "disproportionate," what type of support is disqualifying, whether the case had been pending at the time of the election, how long after an election should any putative bias on behalf of a particular judge be construed, whether a judge's vote has to be outcome determinative in order for his non-recusal to constitute a due process violation or whether the parties are entitled to discovery with respect to a judge's recusal decision, among many other questions.

Chief Justice Roberts contrasted the objective nature of these situations to the completely subjective inquiry required by the "probability of bias" standard.

Justice Scalia predicted, "Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means."

In September 2009, the case was reheard before the Supreme Court of Appeals of West Virginia, with retired Putnam County Circuit Judge James O. Holliday replacing Justice Benjamin.

[6] Justice Joseph Albright, who had sided with Caperton, took a leave of absence in July 2008, after being diagnosed with esophageal cancer before dying on March 20, 2009, in Pittsburgh while undergoing treatment.

[12] The original case involving contributions to judges on the West Virginia Supreme Court drew national attention and ultimately became the basis for the best-selling 2008 novel The Appeal by John Grisham.

On the other hand, litigants have a due process right not to face a judge whom a reasonable person may deem biased given his previously advertised views.