Jurisprudence

History Will Judge John Roberts if His Court’s Steady Stream of 5–4 Pro-GOP Decisions Continues

Chief Justice John Roberts.
Chief Justice John Roberts attends the ceremonial swearing-in of Associate Justice Brett Kavanaugh on Oct. 8 in Washington.
Chip Somodevilla/Getty Images

As Justice Brett Kavanaugh takes his seat on the Supreme Court, Chief Justice John Roberts’s job just got harder. Roberts, who claims to be protective of the court’s role as an impartial arbiter of law, now must welcome a colleague saddled with “credible” and “compelling” allegations of sexual assault (according to President Donald Trump himself) and marred by serious, unresolved questions about his candor, judicial temperament, and partisanship.

The Kavanaugh nomination exposed a remorseless effort by huge Republican interests to confirm this nominee at all costs—which in turn put the spotlight on the court’s pre-existing pattern of partisan decisions that serve those huge Republican interests. Whether Chief Justice Roberts wants to—or can—address the issues this pattern raises about the court’s independence and integrity is the great question facing his leadership.

Kavanaugh was in many respects an unsurprising choice. He said all the things conservatives expect to hear from a justice: He would respect precedent; he wouldn’t make policy from the bench; he would interpret the Constitution as the founders intended. But for Republican appointees to the court, these platitudes have become doctrines of convenience. With the Republican appointees, it is more important to watch what they do, not what they say.

What the Republican appointees have done, with remarkable consistency, is deliver a distinct pattern of rulings for the big corporate and special interests that are the lifeblood of the Republican Party, often achieving by judicial fiat what the Republican Party could not achieve through democratic means. The Republican appointees have done this not three or four times, not even a dozen or two dozen times, but 73 times. All were 5–4 partisan decisions, with no Democratic appointee joining the majority. On the way to this Republican judicial romp, the Roberts Five allowed no doctrine, no precedent, no congressional finding to get in their way. As a nominee, Kavanaugh talked about joining a “team of nine.” In fact, he joins a team of five that reliably delivers big wins for the Republican interests that had such a big role in his selection and confirmation.

Preparing for the Kavanaugh hearings, we reviewed all the Roberts court’s decisions in civil cases. There were 212 5–4 or 5–3 decisions. Of those 212 cases, the right wing of the court voted en bloc to form the majority in 79 cases. Of those 79 cases, big Republican interests won 92 percent of the time. That’s 73 cases. In all of those 73 cases, there was a clearly apparent Republican political interest. And in every one of those 73 cases with a political payload, the Republican interest won.

How were those big Republican interests served? The Roberts Five have opened the floodgates of Republican-friendly unlimited money into our elections, eliminated historic voting rights protections for Democrat-leaning voters, sanctioned voter suppression, and turned a blind eye to partisan gerrymandering, all helping achieve Republican electoral victories. They’ve made it harder for the government to regulate corporations, easier for polluters to pollute, and increasingly difficult for individuals to get their day in court, where a civil jury of one’s peers can protect individuals against the excesses of private wealth and power. Thanks to the Roberts Five, it is ever easier to discriminate against minorities, while corporations and right-wing special interests like the National Rifle Association regularly win constitutional protections unimaginable to the founders.

The Kavanaugh nomination was riven with special interest infiltration into the process. The vetting of potential nominees was completely outsourced to the Federalist Society and its political gatekeeper Leonard Leo. Kavanaugh had given more than 50 speeches to the Federalist Society since becoming a circuit court judge; he auditioned, and he got the part.

The big funders of the Federalist Society show who is behind this judicial nomination assembly line. To the extent its funders are public (many are secret), they come as no surprise: the U.S. Chamber of Commerce, the Koch brothers, the Lynde and Harry Bradley Foundation, and the Scaife Foundations—a who’s-who of big Republican influencers.

When the nominee is selected, the political campaigning begins. The multimillion-dollar scorched-earth ad campaign to get senators to vote for Kavanaugh was spearheaded by the dark-money Judicial Crisis Network.  JCN promised to spend at least $10 million to get Kavanaugh confirmed and spent heavily in red states with Democratic senators: North Dakota, Indiana, West Virginia, and Alabama. JCN keeps its special-interest donors secret. But we have learned that in 2016, JCN received more than $23 million from the secretive Wellspring Committee, which also funds the Federalist Society.

The corporate and special interests behind the groups selecting and lobbying for Republican judicial nominees also fund Republican politicians. After the Roberts Five’s decision in Citizens United, we have no idea whose unlimited dark money floods our elections. But we do know that groups like the Chamber of Commerce and the Koch brothers spend tens of millions of dollars each election to elect Republicans.

The final special interest play is to turn up regularly in appellate courtrooms, like the D.C. Circuit and the Supreme Court, using one of the worst-policed tools of special-interest influence in America, the amicus curiae brief. Big special interests, directly or through funded front groups, file these briefs as a “friend of the court” to influence judges as to how they want the court to rule. It’s hidden, special-interest, judicial lobbying under a fancy-sounding Latin name.

Amicus briefs by right-wing special interest groups appear to have disproportionate sway with the Roberts Five. According to an analysis conducted by professor Paul Collins of the University of Massachusetts, in all 5–4 decisions, amicus briefs supporting the liberal position outnumbered those supporting the conservative position by about 9 percent. In 5–4 decisions in which the Roberts Five constituted the court’s majority, amicus briefs supporting the conservative position outnumbered those supporting the liberal position by about 9 percent.

But the story is not in the numbers, it is in the outcomes. In 5–4 decisions in which the Roberts Five constituted the court’s majority, they voted in favor of the position advocated in conservative amicus briefs 93 percent of the time. The Chamber of Commerce, in addition to funding the Federalist Society and supporting Republican candidates, also writes amicus briefs. It took positions in 25 of the Roberts Five cases and won every single time.

As a judge on the D.C. Circuit Court of Appeals, Kavanaugh fell right in line. In civil cases decided by 2–1 majorities when Kavanaugh was in the majority with another Republican-appointed judge, he voted to advance far-right and corporate interests 91 percent of the time. Kavanaugh reliably voted for polluters, for dark money, and for corporate interests—with a healthy dollop of anti-choice, pro-gun, religious-right politics thrown in. In cases where conservative front groups weighed in with amicus briefs, Kavanaugh reliably sided with them: 91 percent of the time.

So Kavanaugh arrives at the court a known quantity when it comes to results. This record helps explain why Trump, the Republican majority in the Senate, and the big Republican influence groups went to such unprecedented lengths to jam their man through. They want to restart the 5–4 partisan decision treadmill that cranked out 73 victories for them so far under Roberts.

For Roberts, this state of affairs presents a dilemma. His Roberts Five is now back to full strength and the Republican romp can continue. But a court whose majority is picked by a narrow group of wealthy special interests, and which rules consistently for those same interests, will not long maintain its credibility in the eyes of most Americans. And its credibility is the source of its authority. Polling shows Americans are already widely concerned that this Supreme Court now favors corporations over individuals. The partisan 5–4 pattern gives that concern plenty of foundation. And the theatrical, conspiracy-theory, partisan rantings of Kavanaugh will make it hard to obscure the pattern of the treadmill as ordinary business.

Roberts now faces a momentous choice: Does he stem the torrent of 73 partisan 5–4 decisions benefiting big Republican interests? Or does he double down into a continued payday? The corporate and special interest forces that fashioned this court majority will be watching. So, of course, will history.