Friday, March 30, 2012

Why Did Legal Elites Underestimate the Case Against the Mandate?

Professor Jonathan H. Adler has some profound things to explains to the liberal elites at universities:
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.

No word yet from Ezra Klein or Barack Obama on this one.