Adrian Vermeule has argued that under the Chevron rule, the Supreme Court should defer to the government’s interpretation of the relevant portions of the ACA because the disagreement among lower court judges indicates that the statute must be ambiguous. Of the nine judges (six appellate, three district court) who have voted or ruled on the merits of the challenge, six agree with the government and three agree with the plaintiffs. If we believe that the judges acted in good faith, then their disagreement about the meaning of the statute is itself evidence that the statute is ambiguous, triggering Chevron deference to the government’s interpretation if it is reasonable.
But what if we don’t believe that they acted in good faith? The judicial behavior literature sometimes gives the impression that judges are algorithms through which presidents ensure ideological outcomes that they prefer. If judges just vote their ideology, then disagreement does not mean that the statute is ambiguous; it just means that the judges have different ideologies. (N.B.: the literature does not come to such an extreme conclusion, but it gives credence to the widespread view that ideological leanings of judges matter, particularly for high-profile, ideologically charged cases.)
So what do the data show? I compile the relevant information in the table below.
Surprise! All the judges voted consistently with their ideological priors, as measured by the president who nominated them–with one quasi-exception and one real exception.
The quasi-exception is Judge Gregory. Clinton appointed him during a recess, and then Bush nominated him. He voted in favor of the government. The other is Judge Spencer, who was nominated by Reagan and ruled in favor of the government.
One ought to consider the argument that, taking into account ideology, Judge Spencer’s ruling is the only one that is credible because his opinion was the only one that was clearly counter-ideological. Judge Gregory–as someone who was acceptable to presidents from both parties–might also be considered credible for just that reason.
On my version of the Vermeulean vote-counting approach, then, the government also wins. Of course, supporters of the ACA probably shouldn’t take much comfort in this analysis. If judges normally vote their ideology, then more likely than not the Supreme Court will ignore both my and Vermeule’s analysis and vote 5-4 in favor of the plaintiffs.