Motivated Cognition and the Mandate
posted by Dave Hoffman
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.” I was particularly struck by Adler’s social scientific foray arguing that liberals are less able to understand conservatives’ arguments than the converse. (I’m committed to believing that the weight of evidence is to the contrary: we’re all motivated thinkers, with no particular ideological slant to our illiberalism.) And this whole thing reminds me of Ilya’s edifying series on his inability to mimic a liberal.
Notably, this week’s discussion is nicely foreshadowed by this old post by Orin Kerr, talking about Barnett’s surprise and expressed feelings of betrayal following Raich. Then, of course, Orin argued that Barnett had overly-discounted the likelihood that the justices would follow precedent and overemphasized their purported consistency to principle. Since that’s exactly what Orin has been predicting will happen in this litigation, maybe it’s time for him to eat Barnett’s crow. In all, it’s been a boffo week for the V.C. bloggers.
One small quibble. I hear repeatedly that debates in the blogosphere “sharpened” arguments against the mandate, and the liberal academy’s “groupthink” weakened the pro-mandate case. We may never know. But, frankly, this seems like exactly the kind of thing that conservative academics – long suffering and marginalized – would like to believe (and liberals fully believe about viewers of fox news!) But whatever honing (or comforting) the blogosphere has done, it strikes me as highly unlikely to have influenced Justice Kennedy’s sense of his place atop history, his views about the contours of the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and Justice Roberts’ consequent 5-4 anti-ACA or 6-3 pro-ACA opinion. And isn’t that all that matters, in the end?
Indeed, from everything I’ve ever heard or read, argument matters almost none of the time, and especially rarely in high stakes cases. Now it might have been that by repeating claims in a public place, bloggers made them more respectable, and thus (on the margins) more likely to be accepted by the court. But, again, we’re really only talking about one Justice’s mind here, and his deciding vote (which, if pro-ACA, the betting money suggests that Roberts would join). Given the focus on one Justice’s views, doesn’t it seem odd to be talking about large social forces (or small ones) and their influences on him? For all I know, he had a big breakfast before Monday’s argument, it affected his disposition, and we got the questions we got.
Heck, if we’re going to make irresponsible “social science” claims, how about this one: for the next two months, Justice Kennedy will have more power over the lives of his fellow Americans and the American economy than anyone in the country’s history since Abraham Lincoln. Like Lincoln, Kennedy wasn’t elected by the majority of voters. So go get ‘em, tiger!
[Update: Ilya responds:
"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 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."
There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits - though there are, as a proportion of law professors, fewer liberal constitutional law professors blogging than the proportion of libertarian law professors blogging, so our samples are skewed. But there 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. I'm not a constitutional scholar, and my views about the Court are well-known, so it doesn't bother me to see the Wizard. That is: what people say in their blog posts might not have reflected what they would have said if they were betting their TIAA-CREF account on the case.]