In his very important and provocative article, Why Did Law Professors Misunderestimate the Lawsuits Against PPACA, 2014 U. ILL. L. REV. 805, Professor David Hyman argued that:
Almost without exception, elite law professors dismissed the possibility that the Patient Protection and Affordable Care Act (variously called “PPACA,” “Obamacare,” and the “Affordable Care Act,”) might be unconstitutional—but something went wrong on the way to the courthouse. What explains the epic failure of elite law professors to accurately predict how Article III judges would handle the case? ...
[1.] Most law professors have little practical experience. ... Thus, law professors unduly discounted the practical difficulties associated with defending PPACA, in no small part because they failed to notice that a majority of the Supreme Court no longer shared their views on the Commerce Clause. ...
[2] Did constitutional law professors have a strong emotional stake in the outcome of the litigation over PPACA, sufficient to trigger motivated reasoning on the part of those opining? There is good reason to think so. The law represented the signature domestic policy achievement of the Obama Administration—and the culmination of decades of effort by the Democratic Party. Previous research has demonstrated that law professors skew heavily Democratic, with massive underrepresentation of Republicans, conservatives, and evangelical or fundamentalist Christians. ...
[3] Law professors are not known for their modesty. But even among this group, those who teach and write about constitutional law stand out. ...
[4] Making predictions is hard. ...
[5] The preceding factors may help explain how elite constitutional law professors got it so wrong prior to oral argument before the Supreme Court. But, what explains their conduct after oral argument, when it became clear that the constitutionality of PPACA was in serious jeopardy? Rather than admit error, or rethink their original assessment of the probabilities, many of the nation’s elite law professors participated in an extraordinary campaign threatening the Supreme Court (more specifically, threatening Justices Kennedy and Roberts, the plausible swing justices), with de-legitimization if they didn’t rule the “right” way. ...
This strategy substantially raised the political stakes of the dispute, which were high to begin with. For elite constitutional law professors, already inclined to view the Supreme Court as both a political and legal institution, and, as a group, generally committed to an expansive view of federal power, such measures were perfectly reasonable. This was an explicitly bare-knuckles political campaign, waged by a group of elite law professors convinced that they were right and the Supreme Court was about to be wrong. By pursuing politics through other means, the campaign was effectively a declaration of war on those who did not share the academic consensus on the scope of federal power.
To summarize, our nation’s elite law professors organized the aca- demic equivalent of a vigilance committee to enforce what they had defined for themselves as the range of acceptable, mainstream views when it came to the Constitution—just as they had done several decades previously when Robert Bork was nominated to the Supreme Court.
Personally, I've always thought Hyman's second and fifth points were the most plausible explanations. Indeed, if you a sixth factor-aggressive secularism and, in particular, anti-Catholicism among the legal academy--they also explain the legal academy's remarkable harsh reaction to the Hobby Lobby decision. (See, e.g., the over- the-top corporate law professors brief in that case.)
In any case, my friend and co-author Mark Ramseyer has a response piece out that is very much worth reading, because it is written with Mark's typical verve and intelligence:
Is dear reader shocked that our colleagues could so uniformly “misunderestimate” the constitutional problems in the Act? Is he shocked that the 130 signers of an amicus brief supporting this hyperpartisan Democratic statute included no one who had donated to a Republican campaign? Is he shocked that the twenty-two constitutional law scholars surveyed gave ninety-eight percent of their political contributions to Democratic campaigns?
Is dear reader shocked? Captain Renault may have been “shocked, shocked to find that gambling is going on” at the Cafe Americain, but the politics of the constitutional law guild is no secret. One need not down many drinks to learn Ilsa Lund’s politics, and one need not eat many faculty-club sandwiches to learn the politics of the constitutional law crowd. Of intellectual diversity, only feminist jurisprudence and critical race theory have less.
Mark goes on to demonstrate in exquisite detail the left-liberal and secular bias of the academy. He concludes:
Hyman brilliantly details the way constitutional law scholars missed the unconstitutionality of the PPACA. They missed it because they so badly wanted the Act—because they so badly wanted to believe a national health insurance program was possible. They missed it because they let political loyalties trump their judgment—because they let their “moral engagement” block analysis.
And so, once again, the take home lesson is that law schools desperately need intellectual diversity, because right now they are a Democrat /secular humanist monoculture. Time for some affirmative action for "Republicans, conservatives, and evangelical or fundamentalist Christians," not to mention Catholic conservatives.