The Corner

Politics & Policy

Sheldon Whitehouse’s Funhouse Math

Sen. Sheldon Whitehouse (D., R.I.) speaks Judge Amy Coney Barrett’s confirmation hearing on Capitol Hill in Washington, D.C., October 13, 2020. (Jim Lo Scalzo/Reuters)

Rhode Island Democratic senator Sheldon Whitehouse was in full-bore conspiracy-theorist mode today, to the point where he did not even allow Amy Coney Barrett to answer a single question during his time speaking. Senate Republicans were ready — Ben Sasse cracked that Whitehouse was using “Beautiful Mind conspiracy charts” and Ted Cruz bored in detail into Whitehouse’s hypocrisy given the torrents of money on his own side. Whitehouse’s claim that all legal disagreement with him is the result of a unitary conspiracy to buy off the legal system is par for the course for him — as I’ve discussed before at length — but one particular line struck me as especially dishonest: He talked about 80 cases that were decided 5-4 (by the “Roberts Five,” as if they were some sort of criminal gang) in favor of what he characterized as dark-money corporate interests, and he went on a rant about how this was an “eighty to nothing” record and showed that there was a conspiracy:

What’s behind us is now 80 cases, Mr. Chairman, 80 cases under Chief Justice Roberts that have these characteristics. One, they were decided 5-4 by a bare majority. Two, the 5-4 majority was partisan in the sense that not one democratic appointee joined the five. I refer to that group as the Roberts five. It changes a little bit as with Justice [Antonin] Scalia’s death, for instance, but there’s been a steady Roberts five that has delivered now 80 of these decisions. In all these areas where it’s about political power for big special interests and people who want to fund campaigns and people who want to get their way through politics without actually showing up, doing it behind Donors Trust and other groups, doing it through these schemes, over and over and over again, you see the same thing — 80 decisions, Judge Barrett, 80 decisions, and 80-0 sweep. I don’t think you’ve tried cases but some cases, the issue is bias and discrimination, and if you are making a bias case, as a trial lawyer — Lindsey Graham is a hell of a good trial lawyer, if he wanted to make a bias case, [and] Dick Durbin is a hell of a good trial lawyer — if they wanted to show an 80-0 pattern, A., that’s admissible and, B., I’d love to make that argument to the jury. I’d be really hard-pressed to be the lawyer saying, ‘No, 80-0 is just a bunch of flukes, all 5-4, all partisan, all this way.’ So something is not right around the court, and dark money has a lot to do with it. Special interests have a lot to do with it. Donors Trust and whoever is hiding behind Donors Trust has a lot to do with it.

Why is it 80-0? First, why can Whitehouse find no examples of all five Democrat-appointed Justices ruling the same way? Because there were only four of them. If his standard was “how many times have all the Justices appointed by the same party voted together, not joined by any from the other party,” his final score would not be 80-0, it would be 80-80. His standard is the very definition of begging the question: It is literally impossible for there to be any decision that lands on the other side of his line.

Second, Whitehouse has his thumb on the scales in other ways. Of course, the decisions that come out 5-4 on a party-line basis are always going to be the cases where there is a conservative/liberal split. Why does that split always put conservatives on the side of “political power for big special interests”? Because he doesn’t count the power of special interests on his own side. Whitehouse thinks, for example, that unions coercing their members into contributing to campaigns is somehow the opposite of a special interest and the opposite of “people who want to fund campaigns.” Funding campaigns isn’t funding campaigns when they are Democratic campaigns, you see.

Third, the idea that Roberts and other Republican-appointed Justices are in a conspiracy to always side with conservative business interests ignores the rather obvious fact that the Supreme Court decided 5-4 in 2012 to reject a constitutional challenge to Obamacare in an opinion written by Chief Justice John Roberts, and Roberts (joined by Anthony Kennedy) also wrote the 2015 King v. Burwell case taking a frankly ridiculous reading of the Obamacare-exchange statute in order to deflect a challenge to the statute. These are hardly the only examples of cases in which there were a lot of the same conservative interest groups on one side — not only on social-issue questions but economic and political ones as well — and Roberts, Kennedy, and sometimes other Republican-appointed Justices ruled against them. If Whitehouse actually attempted this argument in court, he’d get laughed at and and his evidence excluded on grounds of it being so intellectually shoddy.

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