The Volokh Conspiracy ? Why Did Legal Elites Underestimate the ...

Greg Sargent is one of many commentators wondering ?How did legal observers and Obamacare backers get it so wrong??? I think he?s asking the wrong question. ?A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? ?After ?all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez,?New York v. United States, and City of Boerne v. Flores. ?Many of the legal academics who ridiculed Randy Barnett?s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in?Rumsfeld v. FAIR. ?Oops.? Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.

What explains this state of affairs? ?I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law ? a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. ?At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court?s cases. ?Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for?what the law should be. ?Constitutional scholarship in particular is increasingly focused on theory and less on the law. ?In some corners, it?s more important to reconcile one?s claims with the writings of John Rawls than the opinions of John Roberts.

This divide explains why so many legal academics were dismissive of some of the concerns raised in this week?s oral arguments, such as the need for a limiting principle. ?The Solicitor General?s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf ?whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go. ?Even if Koppelman were right as a matter of first principles, he?s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn?t know it from what he?s written.

Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. ?The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. ?On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. ?This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court. ?So, for instance, it?s easy for Jack Balkin to?dismiss?an argument premised on?Bailey v. Drexel Furniture?because it?s a?Lochner-era decision, even though?Bailey?remains good law. ?A practicing lawyer would have been less likely to make this mistake. ?Indeed, the SG actually cited?Bailey?approvingly this week in his argument before the Court.

In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms. ?Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents. ?As I?ve heard Paul Clement (among others) explain, you can?t effectively advocate your own position until you truly understand the other side. ?This can be difficult to do, particularly when we have strong feelings about a subject. ? ?Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional. ?And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures. ?Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won?t receive an equally warm welcome in court.

UPDATE: Peter Suderman suggests another possible explanation:

What can explain liberals? widespread failure to anticipate the Court?s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren?t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives?first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. ?The results,? he writes in the May issue of?Reason, ?were clear and consistent.? Moderates and conservatives were the most able to think like their liberal political opponents. ?Liberals,? he reports, ?were the least accurate, especially those who describe themselves as ?very liberal.??

I?ve certainly witnessed the phenomenon Haidt describes, but generally assumed it was limited to certain contexts in which there are numerical imbalances between those on the left and the right that affects the degree of interaction people have with those of differing views. I will be curious to read more about this research and the limitations of its findings.

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