08/13/2014 11:47 am ET Updated Oct 13, 2014

Sincere, but Ideological: Judges Can Be Partisan, Even if Not Consciously Biased

It is honorable no doubt to defend federal judges against the charge that they are merely "partisan hacks." But there is no doubt that lawyers expect party ideology to affect those judges' rulings and that they are wise to do so.

That's why, after a three-Democrat Fourth Circuit panel rebuffed one challenge to the availability of certain subsidies under the Affordable Care Act, the losers did not ask the entire, majority-Democratic Fourth Circuit to reconsider the panel decision en banc. They asked immediately for Supreme Court review.

It's also why, when two Republican-appointed and one Democrat-appointed D.C. Circuit judges handed the Government a 2-1 defeat on the same question, the Justice Department did ask the full D.C. Circuit - also with a Democratic majority - to reconsider the matter. No rush to the Supreme Court there.

A common defense against the charge of partisan taint is that what divides judges is not politics, but neutral jurisprudence. Specifically, an obvious rift among the judges who recently gave different readings to the Affordable Care Act lies in their respective allegiance to very different schools of statutory interpretation. Lawyers typically call the approaches textualism and purposivism. Non-lawyers might prefer the terms literalism and pragmatism.

Thus, the two Republican-appointed textualist judges on the D.C. Circuit ruled in Halbig v. Burwell that the IRS could not legally subsidize the purchase of health insurance plans obtained through the federal exchange. That's primarily because one section of the ACA allows subsidies only for plans purchased on an "exchange established by the State," and these judges purportedly could find no reason to disregard the plain meaning of this one bit of text.

In contrast, the purposivist Democrat-appointed Fourth Circuit judges (like the Democrat-appointed dissenter in the D.C. Circuit) held that the ACA ought to be read in light of the Act's manifest overall purpose to provide affordable health care to as many Americans as possible. Notwithstanding the specific provision on which the textualists relied, the ACA elsewhere mentions state exchanges in ways that clearly are intended to refer to exchanges run either by the states or by the federal government on their behalf. These judges held that the IRS was entitled to offer subsidies on both.

The problem with a neutral jurisprudential explanation of these different outcomes, however, is that it imagines judges come to their jurisprudential leanings behind a veil of ignorance. That is, judges supposedly develop their interpretive philosophy without any notion as to the results one approach or another might produce in controversial cases.

Yet research on which I consulted about a decade ago (here and here) suggests that the opposite is true. What we found in a quasi-experimental setting suggests that judges may well choose their interpretive methods based, consciously or not, on whether they expect a given method to produce results that tilt in a more liberal or a more conservative direction.

In other words, judges may sincerely follow their jurisprudence, but their choice of jurisprudence may itself be ideologically tainted.

For example, a politically conservative judge might find textualism attractive because it would anchor readings of the Constitution in social understandings from the eighteenth and nineteenth centuries. Reading old words as long-dead authors expected them to be applied could easily prevent modern readings that would otherwise extend the authority of contemporary political actors to address national problems through new government initiatives that conservatives oppose.

Likewise, in reading statutes, hewing to the most literal version of statutory text will often prevent the executive branch from accomplishing Congress's general purposes in as robust a way as possible. Statutory language may be carelessly drafted or simply not account for unanticipated cases. In the case of the ACA, its wording glitch directly reflects the unusual procedural labyrinth it traveled on the way to enactment.

A purposivist, willing to read either the Constitution or statutes in light of their drafters' general aims, is more likely - on average - to ratify the Government's expansive reading of a text to solve problems in practical ways that square with a larger sense of the drafters' goals. This is likely to be appealing to liberals. As modernists, liberals are more avowedly pragmatic in their legal judgments.

With regard to the D.C. Circuit opinion in Halbig, I don't doubt that the Republican judges who ruled against the administration were sincere in their subjective belief that they were merely following the dictates of sound interpretive practice. What I doubt is that they would be textualists if they were not politically conservative. And, in the specific context of Halbig, I doubt that they would have found their jurisprudence so constraining if they were not comfortable with the negative implications for ACA implementation, the regret expressed in their opinion notwithstanding.

My view of this is shaped by what I take to be the relative strengths of the contending arguments. Such evaluations are partly subjective, and - perhaps because I applaud the aims of the Affordable Care Act - I do not give sufficient weight to the textualists' position. But I don't think the merits of the contending arguments are even close.

In the current dispute, the textualist position seems vaporous. As Yale law professor Abbe Gluck has so thoroughly documented, the argument based on a single section of the ACA ignores everything in the statute that points the other way. It ignores the actual process by which the language was drafted. It ignores compelling evidence that key actors evaluating the statute as it moved through Congress - including the Congressional Budget Office - assumed the Act would allow subsidies on both the federal and state exchanges. Even the Justices on the Supreme Court who would have held the ACA unconstitutional in 2012 read it to permit subsidies via both state and federal exchanges. And, just as damning, textualism can offer no plausible account of why Congress would have permitted subsidies on state exchanges only.

On the other hand, all the evidence that textualists ignore points easily to the purposivists' conclusion. You honestly don't have to be a fan of the ACA to uphold federal exchange subsidies. You need only acknowledge that the statute is ambiguous and allow the IRS to respect the overwhelming evidence that resolves the ambiguity in light of what Congress quite obviously expected. This is an utterly conventional administrative law argument.

In Halbig, it was inevitable that the struggle, against so much contrary evidence, to insist that a literal reading of a single clause ties judges' hands to a result having no obvious purpose would be seen as ideologically driven. This may well be unfair to the judges' conscious intentions. It would not be unfair to their judgment.