David
Hyman’s 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 paper is forthcoming in the Illinois Law Review, which solicited a group of responses. My response is now posted on SSRN, here.
I offer a different
explanation for the professors’ surprise at the seriousness with which
the challenge was taken. The oral argument caused great consternation
precisely because judges who had previously endorsed a broad view of
Congressional power now suddenly abandoned principles that had been
unquestioned for decades, and embraced limits that they had never before
even mentioned and that made no sense as a matter of either
constitutional interpretation or political philosophy. The explanation
for the near-success of the challenge was a combination of libertarian
prepossessions and pure Republican party loyalty. Because such behavior
is so far outside the bounds of normal, responsible judicial action,
the law professors did not anticipate it.