U.S. Intellectual History Blog

A Problem for Future Intellectual Historians

Back when the Supreme Court heard the Affordable Care Act case, in March of 2012, and then when they later issued their ruling, that June, I fiddled around with writing a post about how liberal analysis of the case, as it worked its way through the federal courts, should, in the future, become an interesting subject for intellectual historians.  But this turned out to be one of those posts that never got written.  Last week, however, a post by constitutional law scholar (and my college debate partner) Mike Dorf on his blog, Dorf on Law, as well as a book review, referenced within the post, that he wrote for the Texas Law Review, have convinced me to finally get around to writing what I had planned to write back then.

But first some preliminaries.  A professor of mine in graduate school once suggested that the one of the tricks to doing intellectual history is getting the jokes. What he meant was that when we encounter a text from the past that we know that people at the time found funny, but that we don’t find funny today, we have located an interesting, and potentially illuminating, intellectual history problem, a window into how people thought in the past that might end up helping us understand many more things than just that particular joke. 

One important aspect of the public discourse about the health care cases presents a kind of inverse version of this opportunity.  Until surprisingly late in the game, most liberal legal analysts didn’t take conservative Commerce Clause arguments against the constitutionality of the ACA seriously.  Let me be clear that when I say that they didn’t take them seriously, I don’t mean merely that they thought that these conservative arguments were bad. That was entirely unsurprising (and, in fact, I agree with them about this).  What is surprising is that liberal analysts overwhelmingly thought that the arguments were so weak and outlandish that even most of the conservatives on the Supreme Court would reject them out of hand.  Liberals proved to be absolutely wrong in this prediction. A majority of the Justices—Alito, Scalia, Kennedy, Thomas, and Roberts—bought the conservative arguments that the Commerce Clause did not permit the creation of the individual mandate. The mandate survived only because Roberts, alone, was willing to join with the other four Justices in finding that Congress’s taxation powers allowed it to impose the mandate.  The puzzle for future intellectual historians involves understanding why liberal analysts were so wrong about this.

One of the reasons I didn’t write this post last year is that I never found the time to round up evidence that liberal analysts had failed to predict the efficacy of those conservative arguments.  And this is where Mike Dorf’s blog post and review of Andrew Koppelman’s The Tough Luck Constitution and the Assault on Health Care Reform come in.  As Professor Dorf writes in that review:

I once shared the view of Koppelman and other liberal scholars who treated the constitutional arguments against the mandate as practically frivolous. However, I have come to regard my prior view as blinkered. I no longer regard the federalism arguments against the mandate as so weak as to indicate that the Justices who endorsed them cannot really have believed them. Liberal scholars like Koppelman—and like me during the pendency of the Health Care Case —have not taken the federalism project of the Rehnquist and Roberts Courts seriously enough. Thus, I did not, and Koppelman still does not, credit the possibility that the conservative Justices could have sincerely regarded the mandate as a threat to the Constitution’s state–federal balance.

Dorf devotes much space in his review of Koppelman to explaining why he thinks one ought to take the conservative Justices’ federalism commitments seriously, though he continues, of course, to disagree with them.  What he never quite explains – nor really even tries to explain – is why he and so many of his fellow liberals had failed to do this before the Health Care Cases came before the court. That liberal analysts had failed to do so is surprising precisely because there’s nothing new in these conservative judicial commitments; most of Dorf’s evidence for their seriousness comes from earlier cases. The closest that Dorf comes to explaining this liberal underestimation of the efficacy of federalism arguments before the Court comes when he writes that:

Koppelman rejects the entire framework within which the Supreme Court’s conservative majority has implemented the Constitution’s federalism limits; thus, like other liberal constitutional scholars, he was not and is not well positioned to say what questions that majority would regard as settled and what questions it would regard as open. 

I have a hard time accepting that this is the entire answer. Surely part of the job of any constitutional lawyer is to understand what questions (and answers) his or her ideological opponents take seriously.  If, because he is a liberal, Koppelman can’t anticipate what questions conservative Supreme Court Justices will regard as settled, that would be be quite an indictment of liberal legal analysis. And, in fact, it’s belied by Dorf’s own review, which does a fine, if admittedly ex post facto, job of suggesting both why the Court took the Commerce Clause arguments about the ACA seriously, and why we can expect them to continue to push the envelope on federalism issues. But again, Dorf is, in this review, much more interested in explaining the (relative) internal coherence of conservative federalism arguments than in understanding why liberals underestimated their effectiveness before the court. Most of his argument is concerned with, in effect, expanding the universe of constitutional arguments that, for better or for worse, we ought to consider to be non-frivolous.

I asked Professor Dorf, in comments on his blog post, to elaborate about the failure of liberal analysts.  Here’s his answer (which echoes his above quoted statement from the review about Koppelman):

Despite over a century of legal realism and extensive empirical evidence that ideology plays a very large role in the decision of Supreme Court cases, most professional lawyers, including legal academics, believe in the integrity/independence of law. Thus, we liberals who looked at the prior case law both failed to realize how our own ideological druthers informed our reading of that body of law and failed to appreciate how the conservatives’ ideological druthers would lead them to see the case so differently.

Perhaps. But, one way or another, as the health care cases made their way through the Courts, many liberal legal analysts’ seemed unable to grasp the range of arguments that contemporary conservative lawyers take seriously.  Why that was the case seems to me to be something to which future intellectual historians will want to attend.

9 Thoughts on this Post

  1. I really, really enjoyed this post. It gets to the heart of something that historians may have to consider more and more when looking back on the 1990s and 2000s. If I may be so bold, it seems a key characteristic of the “Age of Fracture” (sorry I went there heh) is two political wings of the American polity just talking past each other. That’s not to say that didn’t happen before, but usually on major policy points one side would take the other seriously enough to at least offer a rebuttal. With what you describe above, though, that didn’t happen. I wonder if this can be applied to other serious policy debates in recent American history?

  2. many liberal legal analysts’ seemed unable to grasp the range of arguments that contemporary conservative lawyers take seriously.

    Exc essay, Ben. In fairness, although like most everything else, legal scholarship is overpopulated by the left, it’s a partisan blindness only because of that numerical imbalance in this case, not one specifically of ideology. Those to the right missed it too.

    Libertarian “originalist” Randy Barnett is quite popular amongst theorists especially for his quite valid P & I thesis


    but the Court’s conservatives aren’t interested, and of course the liberals aren’t buying either–even though a whole blogoverse of Barnetts at volokh.com and Andrew Koppelmans at Jack Balkin’s blog

    “…there is a great deal of evidence on the original meaning of “privileges or immunities” and scholars from across the political spectrum have reached at least some degree of agreement on these points, as one can see in this amicus brief by Randy Barnett, Jack Balkin and several other prominent constitutional law scholars of differing ideological backgrounds”

    have reached a consensus.

    The real “fracture” is between theory in the academy and the real world.

    This development, in Scalia’s view, is connected to the increasingly esoteric nature of legal scholarship, which has become disconnected from what law students, and lawyers, need to know.

    “There’s not much more legal scholarship to be done,” he said, “and too many scholars to do it.”

    Scalia also warned that too few law professors have significant experience as practitioners, citing his own review of the Harvard Law School faculty roster. “The academic mindset is too far removed from the practice of law,” he said.

    Now perhaps the Privileges or Immunities clause will one day become the guiding spirit of the law of the land. Or not. Such is the danger of investing too much in intellectual fashions that may be the future or may just be a fad.

    • This is not to say Randy Barnett himself was irrelevant on the Obamacare litigation, mind you.


      We lost on health care. But the Constitution won.
      By Randy Barnett,June 29, 2012

      The legal challenge to the Affordable Care Act, which I advocated as a law professor before representing the National Federation of Independent Business as a lawyer, was about two huge things: saving the country from Obamacare and saving the Constitution for the country.

      On Thursday, to my great disappointment, we lost the first point in the Supreme Court’s 5 to 4 ruling to uphold the health-care law. But to my enormous relief, we won the second. Before the decision, I figured it was all or nothing. But if I had been made to choose one over the other, I would have picked the Constitution.

      In November, voters can still fight Obamacare. Yet no single election could have saved the Constitution from the court.

      This battle for the Constitution was forced upon defenders of limited government by Congress in 2010, when it insisted in the health-care bill that it was constitutional to require all Americans to purchase insurance or pay a fine. Lawmakers argued that this mandate was justified by the Constitution’s commerce and “necessary and proper” clauses. Had we not contested this power grab, Congress’s regulatory powers would have been rendered limitless.

      They are not. On that point, we prevailed completely. Indeed, the case has put us ahead of where we were before Obamacare. The Supreme Court has definitively ruled that the commerce, necessary and proper clause, and spending power have limits; that the mandate to purchase private health insurance, as well as the threat to withhold Medicaid funding unless states agree to expand their coverage, exceeded these limits; and the court will enforce these limits.

      On the commerce clause, Chief Justice John G. Roberts Jr. and four dissenting justices accepted all of our side’s arguments about why the insurance mandate exceeded Congress’s power. “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Roberts wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

      • …one way or another, as the health care cases made their way through the Courts, many liberal legal analysts’ seemed unable to grasp the range of arguments that contemporary conservative lawyers take seriously. Why that was the case seems to me to be something to which future intellectual historians will want to attend.

        LATE ADD:

        How a Conspiracy Cracked a Monopoly
        December 1, 2013 by Rob Natelson


        Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.

        This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.

        The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools.

        These schools include the University of Michigan, Columbia, the University of Chicago —and most notably Harvard and Yale.
        Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.

        The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school.

        My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.

        When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings…

  3. This is a great piece.

    I wonder if an important piece of the puzzle (perhaps I missed this in my reading) was that the ACA must have been drafted by lawyers in anticipation of a Supreme Court challenge. I think. My memory of the performance of the admin’s lawyers is that they argued the case quite weakly… which could mean a number of different things.

    But–is it fair to assume that what came before the Court was either a piece of legislation that the Obama administration believed would pass review by a 5-4 Court, or a preliminary offer that was structured to survive a partial unfavorable decision?

    The other question would be: could a universal heath care law have been drafted that would not have been destined to be struck down on interstate commerce or due process grounds? Was such a plan conceptually available to policymakers in 2008?

  4. Ben, thanks for the shout. As I note in the Tex L Rev review, a useful point of contrast is Bush v. Gore, where, even after the case was decided, and even today, liberals don’t take the conservative majority opinion seriously because the result fits so poorly within the prior conservative framework of favoring states’ rights and disfavoring equality claims.

    • And, of course, Bush v. Gore explicitly says that it shouldn’t be taken as precedent, infamously noting that “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” This suggests that the decision’s authors may not have taken its arguments too seriously, either.

      But to me the more interesting contrasts are with conservative arguments about issues such as the Voting Rights Act or affirmative action, the merits of which liberals also have little respect, but the likely success of which arguments before our current Supreme Court liberals have long anticipated.

  5. Just to make explicit what I think is implicit in this conversation: we’re talking about three distinct qualities in others’ legal arguments. First, the intrinsic merits of the argument. Second, the chance of that argument succeeding in the courts. Third, whether or not the argument is being offered in good faith. All are, I think, interesting questions. In his review, Mike Dorf focused on the first and third in relation to conservatives’ federalism arguments against the ACA. In my post, I’m most interested in liberal analysts’ failure to accurately evaluate the second in regards to these arguments.

    • liberals don’t take the conservative majority opinion seriously because

      Not that the answer after that matters much–the point is that ben’s premise is established–“we” don’t take “conservative majority opinion seriously.”

      Bush v. Gore. OK, although Ben is correct that the Court admitted it was being expedient, not promulgating principle and precedent.

      [One would think that influenced CJ Roberts’s “make up call” on Obamacare, that the Court should not interfere with the democratic process.]

      Regardless, many left-liberal arguments* against “originalism” begin and end with Antonin Scalia’s inconsistencies and “hypocrisies.” Therefore “originalism” is BS and need not be “taken seriously.” “Originalism” is just another dishonest method for judges to impose their druthers.

      The beauty of “living constitutionalism” is that it requires no consistency at all. It’s honest: In some moral systems, hypocrisy is the gravest sin, and the solution is to be unbound by principle or precedent.
      *Libertarian critics of Scalia seem to be pumping the currently fashionable “Privileges or Immunities” line of “originalism.” See for instance

      JUSTICE SCALIA: No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

      MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -­

      JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty -­


      MR. GURA: No. No. I have left law school some time ago and this is not an attempt to — to return.

      JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?


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