Underestimating the Chances of the Anti-Mandate Lawsuits

Co-blogger Jonathan Adler rounds up some of the commentary discussing how many liberal pundits underestimated the chances of the anti-mandate lawsuits. After last week’s oral arguments, it now seems clear that many liberal commentators did grossly miscalculate on this issue.

At the same time, it is fair to point out that some conservative and libertarian pundits also underestimated the lawsuits’ chances of success. Andrew Sullivan notes that I myself said the federal government was more likely to prevail than the plaintiffs, in a Reason TV video a few weeks before the oral argument. Avik Roy at Forbes notes that respondents in an American Action Forum poll of 43 Supreme Court practitioners and former Supreme Court clerks predicted, on average, a 35% chance that the mandate would be struck down.

However, there is a big difference between predicting that the mandate would be upheld and claiming that the anti-mandate lawsuits were silly and frivolous – which is what many liberal commentators were saying, as late as the eve of the oral argument. A suit with a 35% chance of winning may deserve to lose. But it’s not frivolous.

Even if such a viewpoint was defensible when the lawsuits began two years ago, it clearly was not after four lower court decisions had struck down the mandate and the overwhelming majority of conservative and libertarian constitutional law scholars came out against it. If nothing else, liberal commentators could have learned from the lower court decisions upholding the mandate. Without exception, these rulings included long and detailed discussions of the relevant precedent. And most admitted that the case presented novel issues that had not been squarely addressed in previous Supreme Court decisions. These were not the kinds of opinions you typically see in cases that are easily resolved through straightforward application of established precedent.

Some liberals understandably derived a false sense of security from the opinions upholding the mandate by conservative judges Laurence Silberman and Jeffrey Sutton. However, Silberman’s opinion upheld the mandate despite his recognition that the government’s arguments in its favor left no room for limits on federal power. It was never likely that the Supreme Court majority would go for this idea, especially after they had forcefully emphasized that limits on federal power are needed to protect individual liberty. Sutton’s opinion, meanwhile, rested on a dubious distinction between as-applied and facial challenges that would have required the Supreme Court to overrule United States v. Lopez and, possibly, many other decisions. I doubt that even the liberal justices would have endorsed this approach, since it would also block many constitutional lawsuits that liberals favor. And Sutton’s reasoning, like Silberman’s, amounted to a rationale for virtually unconstrained federal power.

Finally, it’s worth noting that many liberal commentators – particularly some of my fellow academics – did not just fail to predict the reactions of conservative judges. When it comes to the federal government’s argument that the mandate is a tax, many also failed to predict the reactions of liberal jurists. All but one of the numerous lower court judges to have considered this argument rejected it. And the Supreme Court oral argument revealed that at least three of the four liberal Supreme Court justices are also highly skeptical.

In sum, it was not unreasonable to believe that the Supreme Court would uphold the mandate. As I noted in the Reason video linked by Sullivan, the law started out with the four liberal justices’ votes clearly in its favor. On the conservative wing of the Court, as I also noted in the video, there had been a considerable amount of fractiousness on federalism issues in recent years. And the pro-mandate side needed to peel off only one conservative in order to win.

On the other hand, it did become increasingly untenable to claim that this was a clear case that can easily be resolved through simple application of existing precedent. Jonathan Adler’s post enumerates some of the reasons why many liberal commentators, especially academics, may have fallen into this error. An additional point to consider is that, for many years, the overwhelming majority of liberal legal scholars have believed either that federalism issues should be left completely up to the political process (a view articulated by Justice Stephen Breyer, himself a prominent former academic, at the oral argument) or that judicial review of federalism issues should be conducted in an ultradeferential manner that leaves room for striking down only a few insignificant marginal laws. Any other view is seen as threatening a return to the supposedly benighted bad old days of the pre-New Deal Supreme Court. As Jonathan pointed out previously, the dominance of these types of views helps explain why liberal academics were overwhelmingly hostile to the Court’s decision in Lopez (which most also failed to predict).

UPDATE: Dave Hoffman responds to this and other recent VC posts here:

At the V.C., Ilya Somin, Jonathan Adler, David Bernstein, David Kopel and Randy Barnett are engaging in victory lap devoted to the proposition “We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are particularly close-minded.”

Hoffman misses the point. The issue is not that we happened to be right and various liberal commentators were wrong, but that many of the latter couldn’t even concede the possibility that their opponents had a serious case. As I said above, the big mistake here was not merely thinking that the mandate would be upheld. Or if that was a big mistake, I was guilty too. The far more serious error was claiming that this was an easy slam dunk case for the federal government.

Later in his post, Hoffman suggests that the case is difficult to predict and that the details of arguments are unlikely to matter because it really all comes down to Justice Kennedy’s inscrutable vote. Maybe so. But if the anti-mandate lawsuit really were an easy slam dunk case for the Obama administration, it would never have come down to Kennedy’s potentially tie-breaking swing vote in the first place.

UPDATE #2: Hoffman responds further in an update to his post:

[T]here are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt; and (2) constitutional scholars generally would prefer to avoid overly cynical public blog posts like this one, which make it seem like the Supreme Court is a political institution with no real commitment to precedent in most cases.

On the first point, there is no evidence that the liberal commentators who said the case was a slam dunk did not mean what they said, even if they also recognized some possible tactical benefit in saying it. And there certainly was no such benefit once several lower court decisions had struck down the mandate and most of the conservative and libertarian legal establishment also came out against it. At that point, showing contempt for the opposition’s arguments was more likely to alienate than attract any wavering conservative conservative Supreme Court justices. As for making “cynical” statements about the courts, constitutional law scholars do that all the time. And in any event, one did not have to be cynical to acknowledge what most of the lower court judges who upheld the mandate stated in their opinions: that this cases some novel issues and is therefore not a slam dunk for either side.

UPDATE #3: I should perhaps repeat what I have already said several times in various public statements since the oral arguments: It is not my belief that the Court will definitely or even probably strike down the mandate. I still think the case could easily go either way. Therefore I am not taking a “victory lap” in the sense of celebrating a favorable outcome in the Supreme Court. On the other hand, I think it is clear that the Court, like most lower court judges before it, is taking the issue seriously and does not regard it as a slam dunk.