Balkinization  

Thursday, April 25, 2013

Did the Law Professors Blow It in the Health Care Case?

Andrew Koppelman



David Hyman’s newly posted paper, Why Did Law Professors Misunderestimate the Lawsuits Against the PPACA?, reflects on what he calls “the epic failure of law professors to accurately predict how Article III judges would handle the case.”  The culprit, he concludes, was the experts’ insularity and arrogance.  (I’m one of his named targets.)

The following facts are undisputed:  (1) many law professors, myself included, declared that the constitutional objections to the ACA were frivolous, and (2) the Court in the end accepted many of those objections and struck down the law in part (the requirement that states accept the Medicaid expansion or lose all their funds).  These facts should be deeply embarrassing to the professors if and only if their jobs consist entirely of making predictions about what the Supreme Court will do.

Hyman allows for only one other possibility:  Law professors weren’t actually making predictions. Instead, they were just behaving like law professors – i.e., they were pontificating about the state of constitutional law precedent, and/or providing their personal views on what the Constitution authorizes and prohibits.” 

Well, that sounds like pointless navel-gazing.  If there are just two options, prediction and pontification, then only the first is worth doing.  “With all due respect to those quoted, no one (apart from other law professors who do constitutional law, the articles editors at the law reviews that publish their articles, and perhaps the mothers of those law professors, and I’m not so sure about the last category) has the slightest interest whatsoever in the personal views of constitutional law professors on what the Constitution authorizes and prohibits.”

Now, as it happens, not all of us confidently predicted that the Court would uphold the ACA.  Here’s the first sentence of my first article on the topic:  “The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore.”  That sentence presumes that there is a criterion by which one can intelligibly call a decision an abuse of power. 

In Hyman’s world, that notion is unintelligible.  It is impossible for a case to be wrongly decided, because law is simply whatever courts say it is.  (If you complain, you’re just pontificating.)

In fairness to Hyman, a lot of law professors did confidently make predictions about the case, predictions very different from mine.  How can that be accounted for?  I have my own hypothesis.

There are two ways of predicting what the Supreme Court will do. One is legal analysis. You read the Court’s decisions, see what broad principles the judges have endorsed, and then apply those principles to the case before you. But there is a second approach, which I’ll call Kremlinology, after the old practice of analysts trying to guess what the Central Committee of the Soviet Union was up to. This attempts to piece together any evidence one can find of the whims of those in power, in order to intelligently guess how that power will be used.

Law professors aren’t Kremlinologists.  They tend to presume, and are usually right to presume, that the courts are interested in legal analysis.  From that standpoint, the case against the ACA was and remains preposterous.  But sometimes the presumption turns out to be false.  Perhaps the professors should have taken more account of that (though I’m sure that some of them weren’t as confident as they sounded, and were trying to shame the Court into doing the right thing).  But then, the reproach against them is like the line from the movie Animal House:  “You can’t spend your whole life worrying about your mistakes.  You fucked up.  You trusted us.”



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