Co-Conspirator Jonathan offers a possible explanation for why legal elites, particularly the legal academy and the elite legal academy, got the Obamacare oral arguments so wrong. He points to Greg Sargent and Peter Suderman, and Suderman’s discussion carries us onwards to Jonathan Haidt’s very interesting work. I’m not a constitutional law scholar and I’ve pretty much stayed out of the Obamacare debates, but I am a denizen of the legal academy; it seems to me that what all these folks say by way of explanation is significantly true. I’d venture one additional thing.
The echo chamber Jonathan describes is certainly true of my experience. It defines the boundaries of the acceptable world within the academy. In my experience, it is also true that conservatives and libertarians do have an ability to frame things the other direction, as a function of being a counter-culture. But isn’t a fundamental issue here strategic gaming behavior by legal academic elites who do detect, beyond the echo chamber, political rumblings in broader society that might eventually have effects on legal results in these kinds of society-shaping decisions? And who therefore attempt to manage outcomes – in the way that elites so often do – by managing the frame of acceptable and unacceptable argument? (This is, by way, a pretty good way of defining “reactionary” – and one that Stendhal, if one reads the hilarious chapter on the drawing room of the Hotel de la Mole in The Red and the Black, would have understood perfectly. It has been a while since I have mentioned Stendhal here at VC, and you know you miss it – ed.)
Seen from a strategic gaming frame, then, the interest of elite legal academics is not to “predict” the Court, but instead to influence the framing of acceptable and unacceptable opinion and thereby set the boundaries of outcomes. The function of dismissing this or that is to seek to establish the boundaries, so to speak, of Justice Kennedy’s moral world. And in that case, what purpose is there even to admit the possibility of Co-Conspirator Randy Barnett’s opinions? Admitting that possibility might make prediction more accurate – but it also risks making the prediction more likely to come true. Far better to treat it as right-wing libertarian craziness, in order to lessen the chance that it might turn out ... not to be craziness.
Added: To be clear, I’m not suggesting a conspiracy theory or bad faith. I’m just pointing out that if your interest as an elite legal academic is to influence the Court, rather than predict it, then you have an interest in not giving credence to particular kinds of arguments. That’s so irrespective of whether your world-view as an academic can find room for them or not; if your world-view doesn’t admit of these kinds of claims then it is not inconsistent with this form of strategic gaming, but rather reinforces it; and if it does, then you do have an inconsistency and have to choose what matters to you more – prediction or influence. It isn’t a claim of conspiracy or bad faith – just an observation about incentives based an a hypothesis about a certain kind of interest.
I’m fairly sure someone said exactly this in the comments to Jonathan’s post, but I didn’t wade through the 400+ (the VC commentariat is back?!) comments to find out.