Several of my co-bloggers have suggested recently that liberal academics were surprised by the oral argument in the health care cases because they are out of touch with conservative thought. I don’t think that’s accurate, though, because the premise strikes me as wrong: I don’t think there has been a major gap between liberal academics and Supreme Court lawyers and conservative academics and Supreme Court lawyers on the odds of what the Supreme Court might do. My sense is that folks on both sides were surprised by how the argument went. One side quite pleasantly, the other side quite unpleasantly. But my sense is that both sides were surprised.
I think it’s worth stepping back and recognizing that at the beginning of the debate over the mandate, everyone saw the mandate challenge as a serious long shot. Randy Barnett has acknowledged that when the mandate debate began, he thought it “a long shot” just to make it to the Supreme Court (much less to win). In a 2010 essay in the Washington Post, Randy acknowledged that “the smart money” was against the mandate challenge and recognized that the prospect that the Court might strike down the mandate might seem “far-fetched,” but suggested that it just might happen if the stars aligned as they did in Bush v. Gore. More recently, when the Court granted cert and scheduled 6 hours of oral argument time, folks on both sides of the aisle began to realize that there was a serious chance that the Court would strike down the mandate: While there was a modest difference between conservative and liberal opinion among Supreme Court clerks and Supreme Court lawyers on the chances the law would be upheld going into the argument, it was actually relatively narrow, with both sides still thinking that odds favored upholding the mandate. Given this history, I have a hard time seeing a major gap between conservative and liberal “elites” on the purely predictive question of what the Court might do.
Of course, some liberal academics were quite harsh in dismissing arguments against the mandate. Some may have used dismissive language for tactical reasons: Defining the challenge as outside the realm of serious academic debate might (at the margins) make it less likely to be taken seriously by the courts. And these efforts were then countered by efforts of mandate opponents who argued in response that the issue should be considered mainstream and not frivolous and thus (at the margins) make the challenge more likely to be taken seriously by the courts. But viewing these sorts of squabbles in light of last week’s oral arguments doesn’t suggest that liberal academics fail to understand conservative thought. Rather, it just suggests that both sides were trying to define the mainstream with the hope that it might (somehow) influence how the Justices approached the case, and that five Justices seemed to accept the definition of one side and four Justices accepted the definition of the other side.