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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.”