Back when the Supreme Court heard the Affordable Care Act case, in March of 2012, and then when they later issued their ruling, that June, I fiddled around with writing a post about how liberal analysis of the case, as it worked its way through the federal courts, should, in the future, become an interesting subject for intellectual historians. But this turned out to be one of those posts that never got written. Last week, however, a post by constitutional law scholar (and my college debate partner) Mike Dorf on his blog, Dorf on Law, as well as a book review, referenced within the post, that he wrote for the Texas Law Review, have convinced me to finally get around to writing what I had planned to write back then.
But first some preliminaries. A professor of mine in graduate school once suggested that the one of the tricks to doing intellectual history is getting the jokes. What he meant was that when we encounter a text from the past that we know that people at the time found funny, but that we don’t find funny today, we have located an interesting, and potentially illuminating, intellectual history problem, a window into how people thought in the past that might end up helping us understand many more things than just that particular joke.
One important aspect of the public discourse about the health care cases presents a kind of inverse version of this opportunity. Until surprisingly late in the game, most liberal legal analysts didn’t take conservative Commerce Clause arguments against the constitutionality of the ACA seriously. Let me be clear that when I say that they didn’t take them seriously, I don’t mean merely that they thought that these conservative arguments were bad. That was entirely unsurprising (and, in fact, I agree with them about this). What is surprising is that liberal analysts overwhelmingly thought that the arguments were so weak and outlandish that even most of the conservatives on the Supreme Court would reject them out of hand. Liberals proved to be absolutely wrong in this prediction. A majority of the Justices—Alito, Scalia, Kennedy, Thomas, and Roberts—bought the conservative arguments that the Commerce Clause did not permit the creation of the individual mandate. The mandate survived only because Roberts, alone, was willing to join with the other four Justices in finding that Congress’s taxation powers allowed it to impose the mandate. The puzzle for future intellectual historians involves understanding why liberal analysts were so wrong about this.
One of the reasons I didn’t write this post last year is that I never found the time to round up evidence that liberal analysts had failed to predict the efficacy of those conservative arguments. And this is where Mike Dorf’s blog post and review of Andrew Koppelman’s The Tough Luck Constitution and the Assault on Health Care Reform come in. As Professor Dorf writes in that review:
I once shared the view of Koppelman and other liberal scholars who treated the constitutional arguments against the mandate as practically frivolous. However, I have come to regard my prior view as blinkered. I no longer regard the federalism arguments against the mandate as so weak as to indicate that the Justices who endorsed them cannot really have believed them. Liberal scholars like Koppelman—and like me during the pendency of the Health Care Case —have not taken the federalism project of the Rehnquist and Roberts Courts seriously enough. Thus, I did not, and Koppelman still does not, credit the possibility that the conservative Justices could have sincerely regarded the mandate as a threat to the Constitution’s state–federal balance.
Dorf devotes much space in his review of Koppelman to explaining why he thinks one ought to take the conservative Justices’ federalism commitments seriously, though he continues, of course, to disagree with them. What he never quite explains – nor really even tries to explain – is why he and so many of his fellow liberals had failed to do this before the Health Care Cases came before the court. That liberal analysts had failed to do so is surprising precisely because there’s nothing new in these conservative judicial commitments; most of Dorf’s evidence for their seriousness comes from earlier cases. The closest that Dorf comes to explaining this liberal underestimation of the efficacy of federalism arguments before the Court comes when he writes that:
Koppelman rejects the entire framework within which the Supreme Court’s conservative majority has implemented the Constitution’s federalism limits; thus, like other liberal constitutional scholars, he was not and is not well positioned to say what questions that majority would regard as settled and what questions it would regard as open.
I have a hard time accepting that this is the entire answer. Surely part of the job of any constitutional lawyer is to understand what questions (and answers) his or her ideological opponents take seriously. If, because he is a liberal, Koppelman can’t anticipate what questions conservative Supreme Court Justices will regard as settled, that would be be quite an indictment of liberal legal analysis. And, in fact, it’s belied by Dorf’s own review, which does a fine, if admittedly ex post facto, job of suggesting both why the Court took the Commerce Clause arguments about the ACA seriously, and why we can expect them to continue to push the envelope on federalism issues. But again, Dorf is, in this review, much more interested in explaining the (relative) internal coherence of conservative federalism arguments than in understanding why liberals underestimated their effectiveness before the court. Most of his argument is concerned with, in effect, expanding the universe of constitutional arguments that, for better or for worse, we ought to consider to be non-frivolous.
I asked Professor Dorf, in comments on his blog post, to elaborate about the failure of liberal analysts. Here’s his answer (which echoes his above quoted statement from the review about Koppelman):
Despite over a century of legal realism and extensive empirical evidence that ideology plays a very large role in the decision of Supreme Court cases, most professional lawyers, including legal academics, believe in the integrity/independence of law. Thus, we liberals who looked at the prior case law both failed to realize how our own ideological druthers informed our reading of that body of law and failed to appreciate how the conservatives’ ideological druthers would lead them to see the case so differently.
Perhaps. But, one way or another, as the health care cases made their way through the Courts, many liberal legal analysts’ seemed unable to grasp the range of arguments that contemporary conservative lawyers take seriously. Why that was the case seems to me to be something to which future intellectual historians will want to attend.
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I really, really enjoyed this post. It gets to the heart of something that historians may have to consider more and more when looking back on the 1990s and 2000s. If I may be so bold, it seems a key characteristic of the “Age of Fracture” (sorry I went there heh) is two political wings of the American polity just talking past each other. That’s not to say that didn’t happen before, but usually on major policy points one side would take the other seriously enough to at least offer a rebuttal. With what you describe above, though, that didn’t happen. I wonder if this can be applied to other serious policy debates in recent American history?
many liberal legal analysts’ seemed unable to grasp the range of arguments that contemporary conservative lawyers take seriously.
Exc essay, Ben. In fairness, although like most everything else, legal scholarship is overpopulated by the left, it’s a partisan blindness only because of that numerical imbalance in this case, not one specifically of ideology. Those to the right missed it too.
Libertarian “originalist” Randy Barnett is quite popular amongst theorists especially for his quite valid P & I thesis
http://www.volokh.com/2010/06/28/why-not-the-privileges-or-immunities-clause/
but the Court’s conservatives aren’t interested, and of course the liberals aren’t buying either–even though a whole blogoverse of Barnetts at volokh.com and Andrew Koppelmans at Jack Balkin’s blog
have reached a consensus.
The real “fracture” is between theory in the academy and the real world.
Now perhaps the Privileges or Immunities clause will one day become the guiding spirit of the law of the land. Or not. Such is the danger of investing too much in intellectual fashions that may be the future or may just be a fad.
This is not to say Randy Barnett himself was irrelevant on the Obamacare litigation, mind you.
http://articles.washingtonpost.com/2012-06-29/opinions/35461381_1_individual-mandate-insurance-mandate-proper-clause
…one way or another, as the health care cases made their way through the Courts, many liberal legal analysts’ seemed unable to grasp the range of arguments that contemporary conservative lawyers take seriously. Why that was the case seems to me to be something to which future intellectual historians will want to attend.
LATE ADD:
How a Conspiracy Cracked a Monopoly
December 1, 2013 by Rob Natelson
http://constitution.i2i.org/2013/12/01/how-a-conspiracy-cracked-a-monopoly/
This is a great piece.
I wonder if an important piece of the puzzle (perhaps I missed this in my reading) was that the ACA must have been drafted by lawyers in anticipation of a Supreme Court challenge. I think. My memory of the performance of the admin’s lawyers is that they argued the case quite weakly… which could mean a number of different things.
But–is it fair to assume that what came before the Court was either a piece of legislation that the Obama administration believed would pass review by a 5-4 Court, or a preliminary offer that was structured to survive a partial unfavorable decision?
The other question would be: could a universal heath care law have been drafted that would not have been destined to be struck down on interstate commerce or due process grounds? Was such a plan conceptually available to policymakers in 2008?
Ben, thanks for the shout. As I note in the Tex L Rev review, a useful point of contrast is Bush v. Gore, where, even after the case was decided, and even today, liberals don’t take the conservative majority opinion seriously because the result fits so poorly within the prior conservative framework of favoring states’ rights and disfavoring equality claims.
And, of course, Bush v. Gore explicitly says that it shouldn’t be taken as precedent, infamously noting that “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” This suggests that the decision’s authors may not have taken its arguments too seriously, either.
But to me the more interesting contrasts are with conservative arguments about issues such as the Voting Rights Act or affirmative action, the merits of which liberals also have little respect, but the likely success of which arguments before our current Supreme Court liberals have long anticipated.
Just to make explicit what I think is implicit in this conversation: we’re talking about three distinct qualities in others’ legal arguments. First, the intrinsic merits of the argument. Second, the chance of that argument succeeding in the courts. Third, whether or not the argument is being offered in good faith. All are, I think, interesting questions. In his review, Mike Dorf focused on the first and third in relation to conservatives’ federalism arguments against the ACA. In my post, I’m most interested in liberal analysts’ failure to accurately evaluate the second in regards to these arguments.
liberals don’t take the conservative majority opinion seriously because
Not that the answer after that matters much–the point is that ben’s premise is established–“we” don’t take “conservative majority opinion seriously.”
Bush v. Gore. OK, although Ben is correct that the Court admitted it was being expedient, not promulgating principle and precedent.
[One would think that influenced CJ Roberts’s “make up call” on Obamacare, that the Court should not interfere with the democratic process.]
Regardless, many left-liberal arguments* against “originalism” begin and end with Antonin Scalia’s inconsistencies and “hypocrisies.” Therefore “originalism” is BS and need not be “taken seriously.” “Originalism” is just another dishonest method for judges to impose their druthers.
The beauty of “living constitutionalism” is that it requires no consistency at all. It’s honest: In some moral systems, hypocrisy is the gravest sin, and the solution is to be unbound by principle or precedent.
________
*Libertarian critics of Scalia seem to be pumping the currently fashionable “Privileges or Immunities” line of “originalism.” See for instance
http://reason.com/blog/2010/03/03/justice-scalias-faint-hearted