In this final clip, Eisenberg makes the argument that even if Castille was potentially biased in this case, it shouldn’t result in the nullification of the votes of the other members of the Pennsylvania Supreme Court. The final vote, after all, was unanimous against Williams, so Williams would have been denied relief even if Castille had recused himself, Eisenberg argues. This glosses over the influence that appellate judges have on each other when considering cases, as an amicus brief filed by former appellate judges thoroughly explains. Each judge plays an active role in deciding the outcome of a case through deliberations that take place in private. Thus, the participation of one biased judge can have an enormous impact without the public ever knowing about it.
Who would know this in more detail than the very justices that Eisenberg was arguing before? It should come as no surprise, then, that Justice Kennedy—the Supreme Court’s swing justice, and therefore the justice most looked upon by his colleagues to persuade others or be persuaded in one direction or another—spoke for the Court in pushing back on Eisenberg’s argument: “‘You can’t persuade your colleagues.’ It’s very hard for us to write that kind of decision.”