Jonathon Adler tries to answer the question, "How is it that so many members of the legal left, including the Soliciter General, failed to anticipate conservative arguments against Obamacare?"
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.
What explains this state of affairs? I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.
Not sure if anyone remembers this, but during the Elena Kagen hearings, Tom Coburn asked her the "broccoli question." Here it is, in case you haven't seen it:
She can't answer it! She was the then-Solicitor General! She was the dean of Harvard Law School! She (and everyone else) had two years to come up with an answer, and they still can't! But, they obviously think, hey, we passed this law, the least the Supreme Court can do is say it's constitutional.
We've got several interrelated problems here (well, they're problems for liberals, not for me). There's the ivory tower phenomenon described by Adler. There's the "Pauline Kael" problem i.e. "but, I don't know anyone who's a constitutionalist!" And there's the openness of this whole process. Liberals have gotten a little too used to being able to pass social engineering legislation and then counting on the courts to either (1) uphold the laws they like or (2) strike down the ones they don't like, all the while using the Constitution as a plaything, rather than as the nation's founding document. It always seemed to happen in the back pages of the newspaper, but now everything plays out in public, or at least semi-public. That's for the good, unless you are a liberal.
But, mostly we've finally reached the point where that which liberals whisper about in secret is being exposed to the world: they don't really believe in the Constitution's separation of powers or its limits on Congress's legislative powers. My Con Law professor, a typical legal progressive, once said, in passing, that he didn't think "natural law" had any meaning in the modern world. I think a lot of his peers would agree, but in saying that he was striking at the rationale for the Constitution and America's exceptional approach to freedom. It's what they think, but they've always been smart enough not to say so in public. And, they still won't, thus all the dodging and weaving in response to conservatives' clarity and logic.
If the government can order you to buy government issue health insurance, then they order you to do anything at all, so long as some transaction is involved. That's not the constitutional republic we know and love, it's socialism. There's no rationale for it, unless you don't know any other.