On April 27-28, 2012, one month after the three-day oral argument marathon in NFIB v. Sebelius, a group of the most distinguished constitutional law scholars assembled in the ivory towers of New Haven in honor of the publication of Yale Law Professor Jack Balkin’s new book, LIVING ORIGINALISM. Much of the discussion focused on the substance of Balkin’s insightful book, with panels ranging from “Living Originalism: A Contradiction in Terms?” to “Comparative and Historical Perspectives on Living Originalism.” But minds seemed to be elsewhere, as the overwhelming tenor of the conference bordered on that thin line between frustration and panic. Or, in the words of George Mason Law Professor Michale Greve, who presented at the conference, there was a “near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate.”
After the most significant Supreme Court oral argument of the Roberts Court, elite law professors were stuck sitting on the sidelines, mystified how they were likely headed towards an unprecedented defeat. Ensconced in the Hogwarts-esque castle that is Yale Law School, leading academics commiserated, and expressed frustration how a “frivolous” argument they laughed at seemed to have been accepted by five Justices. “What went wrong?” they pondered. Was it the recalcitrant Solicitor General, who, unlike his predecessor, shunned academics, and put forth losing arguments in Court? How could everyone else have been led so far astray? Was it the media that gave a “false equivalence” to a rouge gang of libertarian law professors, and made their arguments legitimate? Was it right-wing judges that adopted crazy ideas for purely political reasons? Was it the Tea Party that infected our collective consciousness, and made Americans fear being force-fed broccoli by the President? Certainly, it could not have been the validity of the constitutional arguments against the mandate. What could it have been?
In writing UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE, I conducted over one-hundred interviews with the lawyers, journalists, professors, and politicos involved on both sides of the case. These insights shed light on the question Professor David Hyman seeks to answer in his important and timely new article: “Why Did Law Professors Misunderestimate the Lawsuits against PPACA?”
In my new essay, Obamacare & Man at Yale, a contribution to a symposium in the Illinois Law Review, I highlight how the sentiments at this Ivy-League shindig served as a fitting testament to the law professors’ “misunderestimation” of NFIB v. Sebelius. You can download the essay here.