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.
This, by the way, is also true of the views of legal elites on the matter of religion and the law, as I have noted in several articles of mine:
- “Or We Can Be Philosophers: A Response to Barbara Forrest.” Synthese (2011): forthcoming, though now available for subscribers through Online First.
- “How To Be An Anti-Intelligent Design Advocate,” University of St. Thomas Journal of Law & Public Policy 4.1 (2009-2010): 35-65
- “Must Theology Sit in the Back of Secular Bus?: The Federal Courts’ View of Religion and Its Status as Knowledge.” Journal of Law & Religion 24.2 (2008-2009): 547-568
- “The Courts, Natural Rights, and Religious Claims as Knowledge.” Santa Clara Law Review 49.2 (2009): 429-458.
- "The Court of Disbelief: The Constitution's Article VI Religious Test Prohibition and the Judiciary's Religious Motive Analysis." Hastings Constitutional Law Quarterly 33.2&3 (Winter and Spring 2006): 337-360.
- "Taking Theology Seriously: The Status of the Religious Beliefs of Judicial Nominees for the Federal Bench." Notre Dame Journal of Law, Ethics & Public Policy 20.1 (2006): 455-471.