Legal Elites and the Challenge to ACA

April 4th, 2012

Jon Adler’s post last week about why legal elites underestimated the case of the mandate set of a storm of posts (something they also failed at in Lopez, Boerne v. Flores, and Rumsfeld v. FAIR):

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.

Ken Anderson follows up:

The echo chamber Jonathan describes is certainly true of my experience.  It defines the boundaries of the acceptable world within the academy.  In my experience, it is also true that conservatives and libertarians do have an ability to frame things the other direction, as a function of being a counter-culture.  But isn’t a fundamental issue here strategic gaming behavior by legal academic elites who do detect, beyond the echo chamber, political rumblings in broader society that might eventually have effects on legal results in these kinds of society-shaping decisions?  And who therefore attempt to manage outcomes – in the way that elites so often do – by managing the frame of acceptable and unacceptable argument? . . .

Seen from a strategic gaming frame, then, the interest of elite legal academics is not to “predict” the Court, but instead to influence the framing of acceptable and unacceptable opinion and thereby set the boundaries of outcomes.  The function of dismissing this or that is to seek to establish the boundaries, so to speak, of Justice Kennedy’s moral world.  And in that case, what purpose is there even to admit the possibility of Co-Conspirator Randy Barnett’s opinions?  Admitting that possibility might make prediction more accurate – but it also risks making the prediction more likely to come true.  Far better to treat it as right-wing libertarian craziness, in order to lessen the chance that it might turn out … not to be craziness.

Ilya Somin chimes in:

Avik Roy at Forbes notes that respondents in an American Action Forum poll of 43 Supreme Court practitioners and former Supreme Court clerks predicted, on average, a 35% chance that the mandate would be struck down.

However, there is a big difference between predicting that the mandate would be upheld and claiming that the anti-mandate lawsuits were silly and frivolous – which is what many liberal commentators were saying, as late as the eve of the oral argument. A suit with a 35% chance of winning may deserve to lose. But it’s not frivolous.

Even if such a viewpoint was defensible when the lawsuits began two years ago, it clearly was not after four lower court decisions had struck down the mandate and the overwhelming majority of conservative and libertarian constitutional law scholars came out against it. If nothing else, liberal commentators could have learned from the lower court decisions upholding the mandate. Without exception, these rulings included long and detailed discussions of the relevant precedent. And most admitted that the case presented novel issues that had not been squarely addressed in previous Supreme Court decisions. These were not the kinds of opinions you typically see in cases that are easily resolved through straightforward application of established precedent.

Dave Hoffman replies to the Conspirators taking “victory laps”:

At the V.C., Ilya SominJonathan AdlerDavid BernsteinDavid Kopel and Randy Barnett are engaging in victory lap devoted to the proposition “We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are particularly close-minded.” . . .

I hear repeatedly that debates in the blogosphere “sharpened” arguments against the mandate, and the liberal academy’s “groupthink” weakened the pro-mandate case. We may never know. But, frankly, this seems like exactly the kind of thing that conservative academics – long suffering and marginalized – would like to believe (and liberals fully believe about viewers of fox news!)  But whatever honing (or comforting) the blogosphere has done, it strikes me as highly unlikely to have influenced Justice Kennedy’s sense of his place atop history, his views about the contours of the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and Justice Roberts’ consequent 5-4 anti-ACA or 6-3 pro-ACA opinion.  And isn’t that all that matters, in the end?

Indeed, from everything I’ve ever heard or read, argument matters almost none of the time, and especially rarely in high stakes cases.  Now it might have been that by repeating claims in a public place, bloggers made them more respectable, and thus (on the margins) more likely to be accepted by the court.  But, again, we’re really only talking about one Justice’s mind here, and his deciding vote (which, if pro-ACA, the betting money suggests that Roberts would join).  Given the focus on one Justice’s views, doesn’t it seem odd to be talking about large social forces (or small ones) and their influences on him? For all I know, he had a big breakfast before Monday’s argument, it affected his disposition, and we got the questions we got.

Somin replies to Hoffman:

Hoffman misses the point. The issue is not that we happened to be right and various liberal commentators were wrong, but that many of the latter couldn’t even concede the possibility that their opponents had a serious case. As I said above, the big mistake here was not merely thinking that the mandate would be upheld. Or if that was a big mistake, I was guilty too. The far more serious error was claiming that this was an easy slam dunk case for the federal government.

Hoffman writes back:

There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits – though there are, as a proportion of law professors, fewer liberal constitutional law professors blogging than the proportion of libertarian law professors blogging, so our samples are skewed.  But there are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt; and (2) constitutional scholars generally would prefer to avoid overly cynical public blog posts like this one, which make it seem like the Supreme Court is a political institution with no real commitment to precedent in most cases.

To which Somin writes back:

On the first point, there is no evidence that the liberal commentators who said the case was a slam dunk did not mean what they said, even if they also recognized some possible tactical benefit in saying it. And there certainly was no such benefit once several lower court decisions had struck down the mandate and most of the conservative and libertarian legal establishment also came out against it. At that point, showing contempt for the opposition’s arguments was more likely to alienate than attract any wavering conservative conservative Supreme Court justices.

In the comments of Dave’s post, Randy writes:


Does an April 1st link to Larry Solum’s April Fools Day parody, to which I link every year, constitute a Victory Lap? I feel good about how argument went, but I don’t know what the outcome is going to be any more than anyone else outside the Court itself. So any victory lap is way premature. Nor have I blogged about the oral arguments, though of course I did comment to the press and told them pretty much what I just told you. True, I always thought we had a far better chance than most other law professors. Oral argument confirms that much, I think. I still believe we have a good chance, but oral argument does not guarantee that. Have I ever said otherwise?

Adler comments:

Dave –

Like Ilya and Randy, I think you’re misconstruing our comments. The question was never whether or not the challenges wold prevail — I have never said I thought they would — but whether it was a close case on the merits. I believe that anyone who dug deeply into this issue, and accepted the relevant precedents and arguments on their own terms, realized there were serious anti-mandate arguments with which its defenders would have to contend. The SG’s office has always recognized this, and the oral arguments confirmed the Court did so as well. Even the questioning of the “liberal” justices served to illustrate the tension between the pro-mandate arguments and the principles underlying the post-1990 federalism cases.

As for my alleged foray into social science, I cited some research by Jonathan Haidt and expressed curiosity about the methodology and breadth of the findings. Since you seem to think he’s wrong, what is this “weight of evidence” that you believe undermines his findings?


 Bernstein writes:

You are being quite unfair to Jonathan. He quoted someone else discussing the social science evidence, and then was non-committal about it. Here’s what he wrote: “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.” That is not accurately summarized as a “claim that liberals got this very wrong because of some psychological flaw in their makeup that renders them incapable of understanding conservatives’ worldviews.”

Beyond that, I join my co-bloggers’ objection that none of us have predicted that the challengers will win, either before or after oral argument.

And Orin writes a new post about legal elites and predictions of the court.

I think it’s worth stepping back and recognizing that at the beginning of the debate over the mandate, everyone saw the mandate challenge as a serious long shot. Randy Barnett has acknowledged that when the mandate debate began, he thought it “a long shot” just to make it to the Supreme Court (much less to win). In a 2010 essay in the Washington Post, Randy acknowledged that “the smart money” was against the mandate challenge and recognized that the prospect that the Court might strike down the mandate might seem “far-fetched,” but suggested that it just might happen if the stars aligned as they did in Bush v. Gore. More recently, when the Court granted cert and scheduled 6 hours of oral argument time, folks on both sides of the aisle began to realize that there was a serious chance that the Court would strike down the mandate: While there was a modest difference between conservative and liberal opinion among Supreme Court clerks and Supreme Court lawyers on the chances the law would be upheld going into the argument, it was actually relatively narrow, with both sides still thinking that odds favored upholding the mandate. Given this history, I have a hard time seeing a major gap between conservative and liberal “elites” on the purely predictive question of what the Court might do.

Of course, some liberal academics were quite harsh in dismissing arguments against the mandate. Some may have used dismissive language for tactical reasons: Defining the challenge as outside the realm of serious academic debate might (at the margins) make it less likely to be taken seriously by the courts. And these efforts were then countered by efforts of mandate opponents who argued in response that the issue should be considered mainstream and not frivolous and thus (at the margins) make the challenge more likely to be taken seriously by the courts. But viewing these sorts of squabbles in light of last week’s oral arguments doesn’t suggest that liberal academics fail to understand conservative thought. Rather, it just suggests that both sides were trying to define the mainstream with the hope that it might (somehow) influence how the Justices approached the case, and that five Justices seemed to accept the definition of one side and four Justices accepted the definition of the other side.

Randy replies further to Hoffman’s post:

 For most of the past two years, my prepared speeches concluded with a statement that the smart money is always on the Supreme Court upholding an act of Congress — especially a popular one – though I also identified “legal realist” considerations that favored us (e.g., that the ACA was very unpopular).  As I made legal arguments here and elsewhere, I never claimed to know what the Court would do.  Indeed, I denied that legal arguments should be predictive.  Even today with far more data on which to base a prediction, I don’t pretend to know what the Court will do (or has already done), though like Orin and most everyone else I think the odds of our challenge prevailing are higher now than I would have said before the argument.

Then Paul Horwitz jumps in, who brings in Fallon’s opposition to Amici, and academics-as-bloggers shaping the narrative.

This reminds me of the debate over scholars and amicus briefs that occurred a while back in response to a recent paper by Richard Fallon. Quite a few people took a more forgiving view of these matters than Fallon did, although I side with Fallon on this. One might well think that if the standards for impartiality in scholarship apply differently to amicus briefs, then they sure as hell are lighter or inapplicable for blog posts. I’m not quite sure this is right. In either case, I think the focus on the medium is incorrect. The relevant question is one of message, not medium. A scholar who writes an amicus brief that is plainly intended as an act of advocacy can be understood to be doing just that, and his or her claims can be evaluated and/or discounted accordingly. One who writes an amicus brief that, for reasons of persuasion, adopts a false air of impartiality or relies heavily on the scholar’s (or signatory’s) reputation and expertise as a scholar while saying (or omitting) things that a scholar wouldn’t say (or omit) in his or her scholarly work is not just engaging in open advocacy; that person is also using his or her reputation as a scholar to work covertly and for non-scholarly ends. I continue to insist that there is something wrong with this.

I think something like the same conclusion ought to apply to blogging. Of course everyone already discounts for the medium. But there is still something wrong about yoking one’s reputation as a scholar and expert to the non-scholarly end of “shaping the narrative.” I’m not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.

Does that mean no scholar is permitted to try to “shape the narrative” through blogging and other commentary, or that there’s something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one’s obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; “shaping the narrative” is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence. But one can always make clear, implicitly or explicitly, “This is my view of what the law should be, not what it clearly is under current law,” that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.

I can think of a number of posts about the ACA from legal scholars last week that were clearly and openly offered as advocacy and did a fine job of it. And I can think of others that were clearly not offered as advocacy at all, and said useful and interesting things about the oral arguments. (I would put Mark Tushnet’s posts in this category.) But I do believe that some posts last week traded on the authority of their authors, made overconfident or disingenuous claims about the state of current law and the strength or weakness of opposing arguments, and did so for strategic reasons. I see those reasons as more inculpatory than exculpatory. I don’t see the minimal requirements for scholarly integrity that I offered as changing because of the medium, or because of the importance and currency of the case.

Orin replies to Paul’s post in a new post.

I have similar concerns, for the same reason I agree with Paul with the Dick Fallon view of law professor amicus briefs. Taking on different roles is fine, but clear labeling to demarcate those roles is important. Of course, it doesn’t change the strength of the argument that individuals are making: Arguments stand or fall on their own. And I realize that the instinct among many legal academics to blend scholarly roles and advocacy roles is often strong one, both on the left and the right, that may be impossible to dislodge. But that blending of roles does create tensions, I think.

One counterargument is that perhaps Paul and I are naive, and it is understood that of course law professors publicly commenting on a high profile case are engaging in spin for their side. That’s certainly possible. That might explain why some have described my views as “pro-mandate” when I oppose the mandate: Perhaps my earlier effort to describe how I see the precedents fall are necessarily construed as secret advocacy in favor of the mandate.

Ilya Somin weighs in on advocacy blogging:

In one sense, all blogging that expresses a position on a controversial issue is “shaping the narrative.” Whenever I write a post on a disputed issue, whether it be the individual mandate or the politics of The Hunger Games, part of my purpose is to persuade readers that I’m right and competing views wrong. I don’t think there is anything unethical about engaging in such efforts at persuasion. Indeed, they are part of what makes blogging – including blogging by academic experts – a useful enterprise.

I have also foregone making plausible claims that might help my cause, but which I did not believe to be true. For example, some mandate opponents have argued that the federal government’s shift away from its Commerce Clause argument to put greater emphasis on the Necessary and Proper Clause and the Tax Clause was a sign of desperation, or at least declining confidence in the commerce argument. I did not believe there was any proof of this (making every plausible argument for your side is just good lawyering), so I didn’t say it, even though it might have helped “shape the narrative” in our favor.

And Scott Greenfield wraps up this debate (which I am sure is far from over):

To put this more simply, no one cares what the warring tribes of scholars have to say except to the extent that someone can cite to them in support for a facile way to explain the result desired by the Court.  That they huff and puff amongst themselves is fun to watch, but the arrogance of believing that they “shape the narrative,” and the rest of the world watches and learns at their bended knee makes an outsider chuckle.

The academics are aware that judges don’t read their brilliant law review articles, much to their chagrin. Do they seriously suspect that Justice Kennedy is lurking on Volokh Conspiracy nightly to figure out which side to vote for?

The notion of their opinion being truly more worthwhile because of their veneer of academic respectability is one that frightens me enormously.  Imagine if this were true, and important decisions were left in the hands of a bunch of smart but  “youthful” folks who were so seriously lacking in real world experience that they couldn’t be trusted to find a courthouse, no less figure out what to do once they were inside.  They live a cloistered existence, largely talking and fighting among themselves except when the odd reporter calls for an opinion about a subject they know nothing about, yet can’t wait to offer their views.  Shaping the narrative is all the rage. . . .

A few years ago, I wrote that we either stand for something or stand for nothing, with an homage to the J.H. Blair coal miners of Harlan County, Kentucky.  Are lawprofs better? There’s nothing unethical about standing up for what you believe in.