When is a pattern evidence of bias?
In court, pattern is evidence of bias all the time; evidence on which juries and trial judges rely, to show discriminatory intent, to show a common scheme, to show bias.
When does a pattern prove bias?
That’s no idle question. It’s relevant to the pattern of the Roberts Court when its Republican majority goes off on its partisan excursions through the civil law; when all five Republican appointees — the Roberts Five, I’ll call them — go raiding off together, and no Democratic appointee joins them.
Does this happen often? Yes, indeed.
The Roberts Five has gone on 80 of these partisan excursions since Roberts became chief.
There is a feature to these eighty cases. They almost all implicate interests important to the big funders and influencers of the Republican Party. When the Republican Justices go off on these partisan excursions, there’s a big Republican corporate or partisan interest involved 92 percent of the time.
A tiny handful of these cases don’t implicate an interest of the big Republican influencers — so flukishly few we can set them aside. That leaves 73 cases that all implicate a major Republican Party interest. Seventy-three is a lot of cases at the Supreme Court.
Is there a pattern to those 73 cases? Oh, yes there is.
Every time a big Republican corporate or partisan interest is involved, the big Republican interest wins. Every. Time.
Let me repeat: In seventy-three partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins. Every. Damned. Time.
Hence the mad scramble of big Republican interest groups to protect a “Roberts Five” that will reliably give them wins — really big wins, sometimes.
When the Roberts Five saddles up, these so-called conservatives are anything but judicially conservative.
They readily overturn precedent, toss out statutes passed by wide bipartisan margins, and decide on broad constitutional issues they need not reach. Modesty, originalism, stare decisis, all these supposedly conservative judicial principles, all have the hoof prints of the Roberts Five all across their backs, wherever those principles got in the way of wins for the Big Republican interests.
Finally, you come before us nominated by a President named in open court as directing criminal activity, and a subject of ongoing criminal investigation. You displayed expansive views on executive immunity from the law. If you are in that seat because the White House has big expectations that you will protect the President from the due process of law, that should give every Senator pause.
Tomorrow, we will hear a lot of “confirmation etiquette.” It’s a sham.
Kavanaugh knows the game. In the Bush White House, he coached judicial nominees to just tell Senators that they will adhere to the statutory text, that they have no ideological agenda. Fairy tales.
At his hearing, Justice Roberts infamously said he’d just call “balls and strikes,” but the pattern — the 73-case pattern — of the Roberts Five qualifies him to have NASCAR-style corporate badges on his robes.
Alito said in his hearing what a “strong principle” stare decisis was, an important limitation on the Court. Then he told the Federalist Society stare decisis “means to leave things decided when it suits our purposes.”
Gorsuch delivered the key fifth vote in the precedent-busting, but also union-busting, Janus decision. He too had pledged in his hearing to “follow the law of judicial precedent,” assured us he was not a “philosopher king,” and promised to give equal concern to “every person, poor or rich, mighty or meek.”
How did that turn out? Great for the rich and mighty: Gorsuch is the single most corporate-friendly justice on a Court already full of them, ruling for big business interests in over 70 percent of cases, and in every single case where his vote was determinative.
The president early on assured evangelicals his Supreme Court picks would attack Roe v. Wade. Despite “confirmation etiquette” assurances about precedent, your own words make clear you don’t really believe Roe v. Wade is settled law.
We have seen this movie before. We know how it ends.
The sad fact is that there is no consequence for telling the Committee fairy tales about stare decisis, and then riding off with the Roberts Five, trampling across whatever precedent gets in the way of letting those Big Republican interests keep winning 5–4 partisan decisions.
Every. Damned. Time.
MUST WATCH: #Kavanaugh privately told me he had never taken a position whether a sitting President can be indicted under the Constitution. That just wasn’t true. #WhatsAtStake pic.twitter.com/cel57AMjgo
— Sheldon Whitehouse (@SenWhitehouse) September 4, 2018
Rhode Island Sen. Sheldon Whitehouse to Brett Kavanaugh: "If you are in that seat because the White House has big expectations that you will protect the president from the due process of law, that should give every senator pause" https://t.co/PiEe7WVkrH pic.twitter.com/YmCCnsNFtt
— CBS News (@CBSNews) September 4, 2018