The Anti-Partisan Principle–Concluding Thoughts

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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4 Responses

  1. Brett Bellmore says:

    “Where did that idea come from, at least with respect to people who were not just using it as a convenient argument?”

    Nowhere? You’re asking about an approximately empty set, I think there were precious few people claiming this to be a concern, who didn’t have preexisting motives for wanting the court to uphold the individual mandate.

  2. Gerard Magliocca says:

    No, I don’t think that’s right. Many people made that argument who were not advocates of the Affordable Care Act. Maybe the argument is incorrect, but that’s a different question.

  3. TJ says:


    One doesn’t need to be an “advocate[] of the Affordable Care Act” to want the court to uphold it on grounds other than genuine commitment to a principle that “a group of Justices chosen by one party [should not] strike down the major party program of the other party.” One can just be a partisan Democrat (who opposed the ACA because it was not liberal enough, but once passed wants it upheld). Or one could be a believer in old-style judicial restraint (who believes that courts should generally not strike down major programs regardless of partisan alignment). Or one could be in favor of broader federal Commerce power. It is a false dichotomy to say that, unless one is an advocate of the healthcare law, one must otherwise be acting out of pure unadulterated adherence to your proposed principle. I think it is fair to say that Brett is correct: the number of people who did not have extraneous motives in the debate–i.e. those who really were solely and exclusively motivated by a commitment to a principle that “a group of Justices chosen by one party [should not] strike down the major party program of the other party”–was approximately zero. If you want to frame your claim in those terms, I think you are imposing a formidable burden on yourself.

    Rather, I think what is a much more interesting question is this: of course people were making insincere convenient arguments. But, if one is going to be insincere, there are almost infinite possible arguments to make. Presumably one makes the insincere convenient arguments that one thinks actually have some sort of traction and appeal. Given THAT, why did people pick this argument and not others?

  4. Joe says:

    The question is not just that they were “advocates” of the Act. The telling question is if even those who seriously thought it constitutionally invalid would think otherwise if those nominated by one party only struck it down.

    That is, not just because it was a very close question, so there should be a presumption of constitutionality. Even 5-4 might be okay, if it was a mixed court. Query if Souter and Stevens would have counted as “Republican nominees” here.

    I think the thing is that even those not very supportive of it on policy (if not current company, let’s say someone like Prof. Kerr) thought it likely constitutional given current precedent. Given that, at worst, it was something of a close call. THEN some thought it pretty dubious.