Guest Post by Eric Segall: The Real Reason So Many Law Professors Failed to Predict the Favorable Reception of the Commerce Clause Argument in the Health Care Case

By Eric Segall

There has been a lot of talk on various blogs about David Hyman's forthcoming article detailing how many law professors and others wrongly predicted how the Court would decide the commerce clause issue in the ACA case. It is true that almost every law professor who decided to make a prediction about the case opined the Court would uphold the mandate under the combination of the commerce clause and the necessary and proper clause. And, as Professor Hyman points out, these predictions were uttered alongside high pitched and adamant statements about the frivolous nature of the arguments against the mandate. For what it is worth, and relevant to the thesis of this short piece, I argued both that the arguments against the mandate were frivolous, and that the Court might nevertheless strike it down. That I could be right on both points should not be surprising.

Professor Hyman’s article fails to dig deeply enough into the most obvious reason for the disconnect between the predictions and the result.  Most predictions were based on the professors’ rational reviews of prior cases, history, constitutional text, and simple logic. After all, how can a 2000 page law comprehensively regulating a trillion dollar industry that affects every state not be a regulation of commerce among the states? If Congress can prohibit two people from growing pot that was never bought or sold and whose ingredients were wholly in-state, how could Congress not be able to regulate the national market of health insurance and health care. Unfortunately, none of that (logic, precedent, and text) has much to do with how the Court decides constitutional cases, especially the very important ones.

We live in a world where Justices Thomas and Scalia overturn affirmative action programs despite their oft-stated views on the importance of federalism and originalism, which should lead them to uphold those programs; in a world where the bizarre standing cases of Flast, Valley Forge, and Hein coexist peacefully despite Justice Scalia's clear and correct protestations that they can't; in a world where the Court is likely to apply heightened scrutiny to laws enacted pursuant to Congressional power to enforce the 14th and 15th Amendments, despite the fact that the Constitution expressly gives Congress  the power to enforce those Amendments through "appropriate" legislation; in a world where the Court issued a paen to precedent in Casey even though in the same case it gutted a landmark decision (Roe) and overturned two others; and in a world where prior positive law such as text and precedent are frequently ignored by the Court.  In this world why do law professors and knowledgeable pundits still think they can predict important cases by reviewing criteria the Court cares little about?

Chief Justice Roberts' relationship with Justice Kennedy and his ruminations about personal and professional legacies should have been discussed as frequently as Raich and Wickard when predicting what might happen in the ACA case. That is not to say that is how we should teach our students, or that knowing the language of how the Court explains constitutional law decisions is not important. But in predicting what the Court will do, the Justices' world views, personalities, political calculations, and relationships, are far more important than prior positive law. The only real news relating to all this and the ACA case is that this is news at all.