Fourth Circuit Opinion on the Individual Mandate

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. TJ says:

    I think the “all the judges are Democratic appointees, and the two separate opinions (each in their own way the most robust statement in favor of the mandate so far) are by Obama appointees” bit of information is obligatory in a world where we are all legal realists.

  2. Bruce Boyden says:

    I don’t think we’re all legal realists in the sense you are using that term, TJ.

  3. TJ says:

    Bruce, I think just about everyone recognizes that Democratic appointees are more likely to uphold the mandate and Republican appointees are more likely to strike it down. The correlation is not absolute, but it is pretty strong. One does not need to be a complete cynic and believe that judges are only acting for partisan purpose to have the view that the party of the appointing president is an important and thus obligatory bit of information for this decision.

  4. Bruce Boyden says:

    Even if there’s a correlation, it’s hardly an “obligatory” piece of information to mention in reporting a decision (I have no idea really what that is supposed to mean — morally obligatory?) unless you’re trying to make some sort of argument about cause — that the political affiliation of judges (to the extent that it is reflected in the political affiliation of the appointing president — itself not a perfect correlation) is an important *cause* of their decision — maybe even the most important cause — and thus so important a bit of information that any person hearing of such a decision would want to know. (If you don’t mean that it’s a cause, then the information adds nothing to the knowledge that a judge came out a particular way in a particular case.) If that’s what you mean by “legal realist,” then I’m not a legal realist, and I suspect a large chunk of lawyers and law professors are not legal realists in that sense. Which, if true, would mean that the obligatoriness of the information is reduced to that extent.

  5. TJ says:

    Bruce, if you don’t think that the political affiliation of a judge is a very relevant piece of information in this case or generally, then I agree you are not a legal realist in the sense I mention. But then I disagree with your claim that your view is shared by just about anyone else at all, when these days the legal debate is all about what Justice Kennedy will do once the case reaches the SCOTUS. Nor is it consistent with the widespread noting that Sutton voted for the mandate as the first judge to “cross party lines.” The exception is only notable when it is an exception to a well accepted rule.

  6. Bruce Boyden says:

    Thanks for the response TJ, even though we seem to be the only two people interested in this. I don’t get the reference to Justice Kennedy. The issue is not whether individual judges vote consistently (thus forming predictable blocs on any particular legal issue), but rather whether those votes are in large part determined by their (presumed) political rather than legal beliefs — such a large part that it is “obligatory” to mention that presumed political affiliation in even very short reports about a case decision. I feel pretty confident that a large portion of lawyers and law professors would disagree that political beliefs trump legal beliefs to that extent.

    As for how the press reports outcomes, the fact that the press finds political affiliation of appointing executive relevant makes sense given that reporters and/or their audience are not going to be able to make much sense out of the legal debates. Presumed political affiliation then becomes useful shorthand given the correlation you mention. (I strongly suspect there is also a correlation between shoe size and legal decisions, but not all correlations appear to give useful information to non-lawyers.) I’m not sure, however, why that fact about how reporters do their jobs should influence how a legal blog post should be written.

  7. TJ says:

    Bruce, you are confusing two theories. The first theory is that political beliefs “trump” legal beliefs in the most crass sense like Bush v. Gore, where conservatives who normally believe in robust state rights and are skeptical of expansive equal protection claims suddenly became huge fans of robust federal power and expansive equal protection claims; while liberals did the opposite. I’m not necessarily saying that (though Bush v Gore illustrates that it sometimes happens).

    The second theory is that legal beliefs track pretty closely to political affiliation for various reasons. Most directly and least controversially, the fact that the panel members are Obama appointees is certainly relevant because Obama is very likely to appoint judges with a preset set of legal views that are congenial to his own. George Bush hired John Yoo at the OLC for a reason, but nobody thinks that John Yoo’s political sympathies “trumped” his legal views. They just happened to be exactly aligned. The causation story happens much earlier. And if you don’t think there is a selection effect going on that Republicans pick a different strand of candidate for judges from Democrats, then you are in a tiny minority. And if you accept the correlation as much stronger and more easily observed and explained than a correlation between decisions and shoe size (which will be unlikely to be statistically significant), then precisely because this is a short piece the information is obligatory, because a more detailed explanation is not feasible. We don’t say that “the judge is from a school of legal thought that believes in expansive federal power, more regulation, stronger protection for accused criminals, a greater separation of church and state, greater protections for racial minorities, and places significant weight on equality over liberty when those two values conflict.” We just say that “the judge is a Democrat” as a shorter way of saying all those things.

    My Kennedy point is to illustrate that we already presume all those things about all the other players on the court, who we label “liberal” and “conservative” (each with predictable positions on all my points of legal thought). So if you really prefer, I would have been content if Gerard had mentioned that the decision was comprised of an all-”liberal” panel — which everybody would have understood as a synonym for “Democrat-appointed” anyway.

  8. Bruce Boyden says:

    TJ, perhaps I’m confused, or perhaps you’re confused, or perhaps both of us are confused. (I don’t think neither of us are confused, as I am at least a bit confused about whether you are confused or not.) If your argument is merely that there is a correlation between legal beliefs and political beliefs, but not that the political beliefs cause judicial opinions in your average case in any strong sense, then it seems about as obligatory to mention presumed political affiliation as it does to mention shoe size in a short legal blog post about a recent decision — and I’m willing to bet the correlation between shoe size and legal outcomes is *statistically* significant, i.e., likely exists, but perhaps is not actually significant. And one reason we don’t mention it is because it is misleading, right? The size of one’s feet doesn’t really cause a judicial decision in any way, even if it is correlated. I think it’s also potentially misleading to mention political affiliation, at least if we are talking mere correlation.

    If your argument is that it saves space to mention presumed political affiliation, then I’ve got an even better space-saver: don’t mention it all. Again, if we are talking mere correlation, what does it add to the vote line-up to add presumed political affiliation? Nothing, as far as I can tell. You might as well say, “Judges X and Y voted to affirm, and Judge Z voted to reverse, consistent with Judges X and Y being the sort of people who would vote to affirm and Judge Z being the sort of person who would vote to reverse.” Are you saying that last bit is *obligatory*? I find that strange. But perhaps I am a minority of one on this, as you suggest.

  9. TJ says:

    Bruce, what evidence do you have that there is a statistically significant correlation between judicial decisions and shoe size? The reason we don’t cite shoe size is because any correlation is not going to be weak and statistically insignificant (there is a difference between the two concepts of strength and statistical significance, but I doubt either will be met here). If shoe size starts correlating in a very noticeable way to how judicial decisions are made, then I would say include it.

    Of course, not mentioning something is a better space saver, so of course we are talking a trade-off between information content and space taken to convey it. But if Judges X and Y always vote to affirm, and Judge Z always votes to reverse, then that would also be a bit of “obligatory” information needed to provide context to explain the decision. In fact, that would be the “strong” sense of causation that you mention, since then it says the decision has nothing to do with supposed theories of commerce clause or taxing power, but is presumably more simply the judges’ predisposition to affirm or reverse, like they do in every other case.

  10. TJ says:

    Typo. The sentence should say “The reason we don’t cite shoe size is because any correlation is going to be weak and statistically insignificant.”

  11. John Maenza says:

    I think your arguments are of no importance to the facts. Any decision reached in favor of Obamacare will take this Country into absolute bankruptcy. Period! When the government of the United States of American can force every citizen to purchase a product or force a tax upon them for not purchasing that product we a finished.

    The Supreme Court will vote along party lines, not right or wrong

    See ya in Australia Mate!