Wednesday, April 4, 2012
Why did most legal scholars, liberal and conservative, fail to realize that the Supreme Court might take the silly arguments against the "individual mandate" seriously?
I have seen this topic discussed on several blogs lately (an example, with other links), but I think Lee Epstein (USC) in The New York Times is correct in noting that this is a "teachable moment" for elite law professors and lawyers, though, sadly, the Times doesn't report the relevant lesson, though I suspect this is the one she had in mind: namely, that in cases like this, the Supreme Court acts as a super-legislature, making decisions driven by preferred political outcomes, rather than by law. The mistake of most legal scholars was to think that settled precedents, the fact that omissions can of course produce effects, that healthcare is obviously a national market, that there are large economic consequences that flow from failure to have insurance, and on and on--the mistake was to think that these considerations would dictate the decision of the super-legislature, as opposed to the political ideology of the justices. Perhaps at the end of the day, it will turn out that the law does check political ideology, but if it does not, then the "teachable moment," including for the public, will be that appointments to the Supreme Court should be vetted in public as they are in private: namely, on the political and moral merits of the candidate, with "legal skill" coming a distant third as a relevant consideration.
UPDATE: A well-known public law scholar (who would be familiar to every reader of this blog, but who had reasons for asking that I post this without attribution) writes:
"In cases like this"? You presuppose that in other cases (many cases? most cases?), the Supreme Court *is* driven by "law," which I think is ridiculous. And not because I don't believe that law can and should decide cases. But the Supreme Court is different and always has been. Certainly there are cases where the Justices don't care enough to push a political agenda or where ideology isn't an important factor. Of course, that is also true for legislation--which is why the point defenders of the Court so often make, that the vast majority of cases are unanimous or not close, is misplaced. The vast majority of laws pass the legislature unanimously or all but unanimously. But whenever it counts--and not just high political controversies like health care, but on any issue with general political significance--the decisions are all and only about ideology.
The difference between this Court and past Courts is not its willingness to let ideology and politics drive the decisions. It is that *this* Court is the absolute nadir in American history in the extent and nature of the actual political experience of its members. Smarts don't help or matter much on the Supreme Court. It's all about judgment. But judgment is best if informed by experience, and political judgment requires political experience. The Supreme Court used to filled with former governors and senators and cabinet officials: people who had been in the real thick of political decisionmaking, with real responsibility. Independence worked quite well when people came with political experience: the Justices could use their nuanced understanding of how things worked to temper their judgments. But as we made the Court more important over the past generation, we made it impossible to put anyone on it who had actually done anything other than succeed as a technical lawyer. O'Connor was the last Justice with any serious experience in actual politics. So the present Court operates as ideologically as any in the past (maybe more), but it's a bull in a china shop--blindly flailing, assuming they have a clue what they are doing, mucking things up. They live in a bubble. That's a good thing when the people there have real experience in the world to draw upon. It's a disaster when they don't. That's what we're seeing.
ANOTHER: Tobias Wolff (Penn) writes:
The following is obvious, and implicit in your post, but you do not state it in so many words. Despite the penchant of many law professors for flights of theoretical fancy, I think that what most do when asked their view about the likely outcome of a case is to offer an analysis based upon the best interpretation of existing case law. There are obvious exceptions -- no law professor would content herself with saying that the Texas affirmative action case is going to be decided on the basis of a simple application of Grutter and Gratz. But because many of us resist the idea that you set forth in your post about the political nature of the Court's decisions, we willfully (if sometimes unconsciously) impose upon the Justices a mindset of good-faith reasoning from articulated principles, rather than a mindset of political preference.
The constitutionality of the ACA under existing Commerce Clause and Necessary & Proper jurisprudence is so obvious that it is almost embarrassing to have to insist upon it. As I observed to a friend of mine recently: "Congress enacted this comprehensive legislation as an exercise of its power to regulate national and interstate commerce. If the Supreme Court strikes down the law, it will throw an entire major sector of our economy into turmoil. Q.E.D." It requires intense cognitive dissonance to afford the Court a presumption of good faith and seriousness in their role as judges and yet to recognize that they might use this case as the occasion to upend two centuries of precedent because of their political objections to the resolution of this social and economic problem. Most humans try to avoid cognitive dissonance, and most law professors shy away from cynicism. Hence the gap between law professor predictions and the actual course of the arguments.