Law Professor Predictions and Disguised Advocacy

I wanted to add a quick point on Nick’s post below about predictions on the Affordable Care Act challenges. In my view, the problem with such public predictions is that the people making them often were trying to create reality as much as predict it. As many have noted, courts are widely thought to be influenced by perceptions as to what is deemed crazy and what is deemed mainstream in the broader legal community. As Jack Balkin puts it, judges tend to stick to arguments that are deemed “on the wall” rather than “off the wall.” Whether or not this is true, the belief is widely shared among legal academics. And as a result, a lot of prominent law professors who were purporting to be making predictions about the challenges on blogs and in news reports were also trying to influence the crazy/mainstream line in order to impact what the courts might do. Not all, certainly, but many. In general, the commentators who wanted the courts to strike down the Affordable Care Act argued that the challenge was serious and mainstream. On the other hand, commentators who wanted the courts to uphold the Act generally argued that the challenge was crazy. In my view, these different predictions don’t suggest that one side has a better sense of American law or the direction of the courts. Instead, they largely show that many of the law professors who made public predictions were acting — at least in part — as advocates trying to influence the public debate to help their side win.