Regardless of the outcome, one of the narratives likely to emerge from the Court's decision next week will concern its partisan valence. This will be especially true, of course, if the Court splits 5-4 on predictable ideological lines, with the five Republican appointees voting to invalidate the minimum coverage provision and the four Democratic appointees voting to uphold it. But even other outcomes are likely to raise questions about how much the Court's decision--and perhaps judicial behavior more generally--is explainable in partisan terms.
Thus, it is perhaps useful at this point to step back and take stock of the ACA litigation as a whole. What that examination shows, I think, is that judicial voting patterns have been less correlated with judges' partisan affiliations than many presume. If we look at all the different issues that have come before the courts thus far, the partisan affiliation of a judge tells us little about he or she is likely to vote. If we look at the most contested issue, however--the constitutionality of the minimum coverage provision--then partisan affiliation is more predictive. Nonetheless, it has hardly been determinative.
I am in the process of creating a data set that codes every judicial vote in every case challenging the legality of the ACA. I still have a ways to go, so these results are just preliminary (at best). Moreover, there are all sorts of contestable, discretionary coding decisions can can alter these results. (For example, there are lots of complications in determining what constitutes a discrete vote.) But with those caveats in mind, here are some figures to ponder:
* Overall, Republican Court of Appeals judges have cast 31 distinct votes in ACA cases. Eighteen of those votes (58%) have been against the party challenging the ACA. (This figure counts Judge Stanley Marcus as a Republican, although he was appointed to the Eleventh Circuit by President Clinton. He was appointed to the District Court by President Reagan. It also counts Judge Richard Tallman as a Republican, also appointed by President Clinton, but as part of a political compromise.)
* Overall, Democratic Court of Appeals judges have cast 21 distinct votes in ACA cases. Fourteen of those votes (67%) have been against the party challenging the ACA.
* Every single federal judge to have confronted the question--eight Republicans and two Democrats--has agreed on the taxing power question (i.e., that the minimum coverage provision cannot be justified on this ground).
* Even as to whether the minimum coverage provision exceeds Congress's authority to regulate interstate commerce, a judge's partisan affiliation has not been predictive. Among Republicans, two circuit judges (Dubina and Graham, a district judge sitting by designation) have voted to invalidate it, while three (Silberman, Sutton, and Marcus) have voted to uphold it. Among Democrats, one (Hull) has voted to invalidate it and three (Martin, Edwards, and Davis) have voted to uphold it. Even if we instead count Marcus as a Democrat, partisan affiliation does not seem to hold too much explanatory power.
This is not to say that a judge's partisan affiliation is somehow irrelevant. Rather, the point is that this litigation has involved scores of questions, and as to most of them, the law has been sufficiently clear that judges of all ideological stripes have agreed on the outcome. To the extent there appears to be a partisan split, it is with respect to the most contested, ideologically controversial question, and one on which most now agree the law is hardly clear.
And this is roughly what most students of judicial behavior would predict. In the vast bulk of legal controversies to reach the federal court, there is no predictable difference between the behavior of Republican-appointed and Democratic-appointed judges. But on highly salient, ideologically charged issues, matters are a bit different--but perhaps not as different as many suppose. The biggest difference is at the Supreme Court, where the issues are often highly charged, and the issues are pre-selected based on their lack of any clear legal answer.
Thus, although there have not been any really clear partisan divisions in the lower courts, I fully expect the Justices to split largely (though perhaps not entirely) on ideological lines next week.
