Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez, New York v. United States, and City of Boerne v. Flores. Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.
via volokh.com
Great analysis by Jonathan Adler.
