March 30th, 2012

Legal elites and the Obamacare case

Jonathan Adler asks the question: why did legal elites underestimate the case against the mandate?

You might want to give quick and flippant answers—such as, for instance, “because they’re stupid and biased”—but that really doesn’t tell us much. Legal elites may be biased (as is just about everyone), but they’re most definitely not stupid, at least not in the academic sense.

The answers Adler gives are much more interesting. His first point is that legal academics are often too far removed from the realities of actual practice; the ivory tower effect and all that. His second is that legal academics tend to on the left, which creates an unavoidable echo chamber effect that limits them. Related to this is the following, which I think is a brilliant insight:

As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side. This can be difficult to do, particularly when we have strong feelings about a subject.

This not only applies to law but is equally true for almost everything, including how we conduct ourselves in our personal affairs.

Since my “change” experience, I’ve been more and more convinced that many liberals do not try to understand conservatives, or to pay attention to the actual substance and weight of their arguments. Rather, they tend to dismiss them out of hand as biased and/or self-centered and/or cruel, without understanding the reasoning behind them. And although conservatives like to think they’re above doing the same in return, I think many conservatives fail to understand where liberals are coming from. I like to think (rightly or wrongly) that I understand both a bit better than most, because I’ve looked at liberals and conservatives from both sides now.

The differences between the philosophical underpinnings of conservatism and liberalism are things I’ve explored before, many times, as have so many others. But right now it will suffice to say that those differences have to do with big questions like the nature (bad? good? neutral?) and perfectibility of humankind, how best to achieve goals (through government or individual action), and the importance of liberty and what is the price we are willing to pay for it.

38 Responses to “Legal elites and the Obamacare case”

  1. Libby Says:

    It’s also because conservatives are constantly bombarded with the liberal view – in school, by the media, by the entertainment industry, by any institution that is not consciously right-leaning. It takes a lot of work to deny all of this “conventional wisdom” and liberal values. You have to really evaluate & understand why you choose not to buy into it.

    For liberals, it’s quite easy to avoid conservatism – just don’t watch Fox News, don’t listen to most talk radio, avoid right-leaning magazines. Almost everyone agrees with you, so you don’t have to waste time justifying or understanding it, it’s just the “right” and “normal” view of the world.

  2. physicsguy Says:

    Libby has it right. Working in academia, I cannot avoid hearing all the liberal/left/marxist talking points. If I put out my view, it is often quickly dismissed, for those who take somewhat kindly to me, as “misguided”. For those who have a lower opinion of me, the “rascist”, or the “evil”, or the “idiot” cards come quickly out of the deck. Rarely, are the substance of the argument dealt with.

  3. Ray Says:

    It has been my experience that liberals believe they are morally and intellectually superior people. Consequently, if you disagree with them you must be stupid or evil. Therefore there is no reason to pay any attention to what you say. Liberals have seriously overdosed on self esteem.

  4. George Pal Says:

    We are far beyond liberal and conservative understandings. The difference is no longer a brook separating Democrats and Republicans but a gulf separating Left and Center. Gone are the days of Scoop Jackson liberal American labor Democrats. By most any measure Democrats have abandoned liberalism and taken up with Leftist extremism.

    One has only to look at the Democratic president to see the road traveled by liberalism. Whatever the underpinnings of liberalism once, they were never in support of fundamentally changing this country.

  5. Curtis Says:

    Two bellweathers of the dividing line: gratitude and respect.

    Gratefulness among liberals is just plain ugly. Liberals don’t know gratefulness. They demand it. Consider the remark by Obama regarding his benevolent “reduction” in taxes: “You would think they would say thank you.”

    Respect. What and whom do liberals respect. It’s actually pretty hard to answer. Do they respect, say, women? Do they respect children? Is their “anti-bullying law” respect for children or an attempt to protect their sexualizing of them? What children are being bullied? Homosexual children? No. The bullying that is going on is by the militant we-will-make-your-child-gay movement. Any respect for the parents and family there. Respect is when you observe identities and boundaries even though you might have the power to change them. Who is trying to change who in the homo wars? And was does that say about respect?

  6. Parker Says:

    IMO the left-right divide comes down to first principles. Individual liberty is not negotiable. The rule of law, not of men, is not negotiable. And so on and so forth. We can differ about how first principles are exercised in a civil society, but there is no room for negotiating them away. In general ‘progressives’ do not have principles. Their agenda is power. They seek total dominion over society. When was the last time you heard a ‘progressive’ politician talk about important principles such as life, liberty, and the pursuit of happiness?

    Conservatives (in general) are different in my experience. I often disagree with some of the positions taken by social conservatives. However, I do recognize that their positions come from strong principles and I can readily respect them for upholding what they believe in. Its rare that I can say that about a ‘progressive’.

  7. physicsguy Says:

    I had an interesting meeting this afternoon: the college’s Environmental Model Committee. I think I was appointed by the faculty steering committe as a joke 🙂

    Anyway, the students tax themselves to generate a fund for renewable energy. They now want to change that to a broader mssion of “sustainability”. My basic position is: it’s the student’s money, let them decide how the want to spend it. The most vocal opposition to the change came from all the liberal (redundant) faculty on the committee. They wanted the committee to retain oversight/control of the student’s funds so they could spend it on their renewable energy projects. A very interesting insight into the power mindedness (is that a word?) of the left. The students were a bit shocked at who was supporting them and who wasn’t.

  8. Curtis Says:

    More to poop on.

  9. Mr. Frank Says:

    Liberals claim they care for “the masses” but they don’t have much confidence in letting individual people control their own lives.

  10. RigelDog Says:

    I’m a “changer” too. Yet in all the years since 9-11, I still don’t really understand what happened to our society and to civil discourse. I WAS a liberal, and that meant, at the core, being open-minded and being willing to discuss and debate. In fact, eager to debate, knowing that intellect and reason were more to be found on the liberal side, and unreasoning dogma on the “conservative” side.
    I’m still open-minded, socially liberal, and eager to debate. When and how did absolutely everything change around me, so that to be liberal today means to take it as a first principle that there is to be NO discussion or debate with “conservatives.” And conservatism itself is being constantly re-defined in this dominant discourse. It is defined by the Left, apparently, as everything that remains behind when the Left decides that they are moving on. How is it that I was on the liberal side ten years ago, when I was all for civil partnerships for gays…and then magically turned into a conservative within the past few years, when the Left decided that only gay “marriage” would do.

  11. Gringo Says:


    A very interesting insight into the power mindedness (is that a word?) of the left. The students were a bit shocked at who was supporting them and who wasn’t.

    Perhaps this will be an aha! moment for some of the students, when they see that lib professors wanted total control, while wingnut profs were willing to grant students the control over their own funds.

    My aha! moment on campus came my freshman year when I heard an SDS honcho support adding Lenin to the university curriculum, so that students could learn from one of the wise men- like Plato, Dante, or Kant. That showed me that some on the student left were totally unhinged.

    I had taken a rigorous Politics course my freshman year in high school Reading A Day in the Life of Ivan Denisovich convinced me that communism was immoral. A term paper on soviet agriculture convinced me that communism was incompetent when it came to the economy. I also had grown up with refugees from the Iron Curtain. I had ample reason to view the SDS honcho’s reverence of Lenin with horror.

    I concur with Ray on liberals’ self perception: intellectually and morally superior, and that they view wingnuts as evil and stupid. We are the Folk Song Army….

  12. Gringo Says:

    Mr. Frank
    Liberals claim they care for “the masses” but they don’t have much confidence in letting individual people control their own lives.

    Liberals are all for “the masses,” as long as they don’t have to live next door to them.

  13. gpc31 Says:

    You must read Jonathan Haidt’s “The Righteous Mind”. I bought mine via your amazon widget two weeks ago.

  14. Occam's Beard Says:

    Ultimately, all liberal/leftist proposals come down to the “r” word – “require.” Coercion is the centerpiece of their political philosophy; it starts with recycling, and ends with barbed wire, guard dogs, and machine guns. The difference is quantative, not qualitative.

  15. Occam's Beard Says:

    Btw, am I the only whose teeth are set on edge a bit by the PC word “humankind?” The word is “mankind.” Neither it nor “man,” used in the generic sense, imply anything about gender, any more than the Linnaean name for man, Homo sapiens (the adjective an obvious misnomer), refers to males, or even, counterintuitively, homos.

    So please, neo, “humankind” –> “mankind.”

  16. Mr. Frank Says:

    Inequality is the natural state of human societies. What varies from place to place and time to time is how much. The only way to achieve social equality is via coercion and, ultimately, violence.

  17. Ed Bonderenka Says:

    Gringo: When I was a kid, I saw an “Ivan Denisovich” teleplay on TV! Imagine that today!

  18. br549 Says:

    You’ve still got a soft spot for libs, neo.

  19. neo-neocon Says:

    br549: of course.

    I was a liberal for many many decades, and I understand what my thought process was back then. Almost 100% of my friends and relatives are liberals also. As I said, I’ve looked at politics from both sides now. I don’t demonize liberals.

    Leftists, though—now, that’s another story :-). Actually, there are even a few people on the far left who I’m close to, all of them people I’ve known for a very very long time.

  20. Don Says:

    There has been some research that indicates that conservatives and moderates understand liberals, but liberals don’t understand conservatives. In fact, neo might want to look this up, one man who researched this went from being a liberal to being a moderate based upon his research.

    Now, as far as “liberal” vs leftist; long ago the left took the term liberal, which did not apply to them. There is some confusion here; not long ago, when “liberal” became a dirty word, you would read letters to the editor where “liberals” would write out the dictonary definition of liberal and then say “what’s wrong with that?”, as if the dictionary actually described the people who claimed to be “liberals”.

  21. SteveH Says:

    I’m heading to Atlanta today for a weekend with a long time liberal friend to just take in some sights and probably drink too much. We’ve both agreed not to talk about politics. I suggested we might need to further it by not talking about any events of the past 3 years or make reference to the world currently being on fire. 🙂

  22. Steve Says:

    neo, it strikes me that people who call themselves liberals are now in fact leftists. How is it liberal when the solution to any problem is a greater role for government? If liberals are smart as you claim, they would know better.

  23. carl in atlanta Says:

    Steve: Welcome to these parts!

    This thread brings to mind a recurring discussion I’ve had for several years with a longtime friend and office mate about the definitions of – – and the distinction between – – the terms “liberal” and “leftist”, as those terms are now used.

    My colleague contends that there is a very real and obvious distinction having to do with the presence (or absence) of true hatred of America and a desire to dismantle or ( to borrow a phrase) “fundamentally transform” it into a Marxist utopia [his definition of ‘leftist’] versus a socialist-leaning but far more benign mindset that is motivated by a good faith desire to conform and be accepted as a member of the ‘in-crowd’; is afflicted with white guilt (or more generally, guilt associated with affluence and privilege) and believes in and derives a sense of atonement and positive reinforcement by believing in and supporting Big Government, redistributive social programs, peace movements and environmentalism, the MSM zeitgeist and all things “PC”.

    My friend seems to believe that this distinction is important and self evident and that my mind is just too unsubtle to grasp it.

    He may be right, but I don’t know: those distinctions still seem too contrived and facile to me. I can perceive that there is obviously a spectrum of “mild-to-moderate-to-extreme” on the Left (just as there is on the Right). but post 9-11-2001 (and even more so post 2008 Crash) I don’t think that “liberals” can credibly invoke the “plausible deniabilty” of being only ‘a little bit to the left’. In my mind you’re either a leftist or not. The term ‘liberal” has a history that is so long and contradictory – – not to mention that it was co-opted by the leftists during the LBJ days- – that it conveys no meaning to me other than a lame attempt at rhetorical camouflage.

    If someone can explain to me — in terms that I can grasp — the difference between being a mere “liberal” versus being a “leftist” in America post 9-11, I would be grateful.

    Maybe the changers here can shed some light?

    Have a great weekend.

  24. Occam's Beard Says:

    Liberals are the sheep; leftists are the sheep dogs.

  25. Ed Bonderenka Says:

    There. Occam nailed it.

  26. Charles Says:

    Yes, I find this so true we (left or right) choose to NOT hear what the other side has to say.

    Not that all folks (left or right) act this way; but, it does seem that a majority of folks do.

    Of course, my own personal bias is that there are more on the left who are narrow-minded than those on the right. But, I do have to wonder if I’m not experiencing “confimation bias.”

  27. davisbr Says:

    If you can’t argue for the opposing side, your understanding of your own position will be limited.

    Know thine enemy.

    Or, to more fully quote …

    Know thy enemy and know yourself; in a hundred battles, you will never be defeated. When you are ignorant of the enemy but know yourself, your chances of winning or losing are equal. If ignorant both of your enemy and of yourself, you are sure to be defeated in every battle.

    …as true today, as ever.

    From my reading, liberals do not only not follow Sun Tzu, they’ve never even heard of him.

    I’ve read the dismissive comments from legal elites that were simply absurd, from a legal perspective. I wasn’t surprised, at their surprise.

    Rampant indulgent ignorance spewing forth from people you absolutely know are intelligent, is the saddest spectacle.

    It’s a disturbingly common form of the most repellent type of profession of faith.

    Liberalism – as practiced and usually self-defined within the movement – is ultimately the modern manifestation of the Inquisition.

    Its the same practice …renewed …of evil masquerading as good.

    “Know thine enemy.”

  28. waltj Says:

    Liberals are the sheep; leftists are the sheep dogs.

    I’d say instead that leftists are wolves in sheepdog clothing. Liberals are simply cannon fodder (“useful idiots”) for hardcore leftists.

  29. Don Carlos Says:

    It may interest you to learn the Department of Homeland Security has entered into a contract for up to 450 MILLION .40 cal bullets over the next five years. That’s Homeland ‘Security’, not the DOD.

  30. Ymarsakar Says:

    You will Obey. That is the Totalitarian Utopia of the Left. Obey and live easy. Dissent is no longer patriotic.

  31. Ymarsakar Says:

    The Left actually considers democracy the best form of totalitarian government, because in no other system can you tell people what to do, and have the people think that they are the ones in charge.

    Some SEIU thugs, Rainbow coalition, and you have a bunch of people who think they’re protesting A, when in fact they are promoting Leftist black slavery based upon the orders of white Democrats.

    Also the Left uses IQ as a resource to handle doublethink. It takes IQ to think two contradictory statements at once and believe both are true. So if you think someone is intelligent, realize that doublethink uses up so much IQ resources that it will reduce someone with an IQ of 165 to someone near 65.

  32. J.J. formerly Jimmy J. Says:

    I look at the people who are unable to understand other ideas and perspectives (on both extremes of politics) as being genetically disposed to be that way. In Steven Pinker’s, “The Blank Slate,” he theorizes that our personalities are about 50% formed by genetic traits. One of the five traits that make us who we are is our tendency to be open/closed minded. He believes that the distribiution of these traits is like a bell curve with very open mindedness on one end and very closed mindedness on the other. Changers are people who are more open minded than their friends who remain wedded to ideas learned while growing up and in a school. They cannot change or only change with great difficulty because they are naturally closed minded. That, IMO, is why we find people who, even when presented with facts and figures to convince them of new ideas, still cling to their old beliefs.

    Many people discount Pinker’s theory as bunk. My anecdotal experience with many people of differing political persuasions makes me believe he is on the right track. Maybe someday we’ll be able to prove him true through some sort of testing. Maybe not.

  33. thomass Says:

    “that many liberals do not try to understand conservatives, or to pay attention to the actual substance and weight of their arguments. Rather, they tend to dismiss them out of hand as biased and/or self-centered”

    If no has mentioned it… iit goes back to Marx. The talk of the structure and class interests determining the ideology used to defend the status quo.

  34. thomass Says:

    Occam’s Beard Says:

    ‘Neither it nor “man,” used in the generic sense, imply anything about gender, any more than the Linnaean name for man, Homo sapiens (the adjective an obvious misnomer), refers to males, or even, counterintuitively, homos.’

    Someone brings that up every few years. Yes; the taking man out of things is based on ignorance of language.

  35. thomass Says:

    carl in atlanta Says:

    “If someone can explain to me — in terms that I can grasp — the difference between being a mere “liberal” versus being a “leftist” in America post 9-11, I would be grateful.”

    The liberals gave up the distinction in the last 20 years. They’ll work with leftists as partners but republicans and conservatives are now beyond the pale. re: They just elected a leftist president but the tea party people are the problem…

    In the past liberals would throw leftists out of their organizations…

  36. holmes Says:

    The conservatives in law school were much more capable of meeting political arguments than were liberals (who outnumbered us) precisely because they had been exposed to their arguments over and over again and could see the other side’s argument much more clearly. The Left insulates itself far more and rarely confronts conservatives- dismissive of them because, after all, they are bad people, and why even contemplate it and risk tarnishing your pure thoughts?

  37. J.J. formerly Jimmy J. Says:

    holmes: “The Left insulates itself far more and rarely confronts conservatives- dismissive of them because, after all, they are bad people, and why even contemplate it and risk tarnishing your pure thoughts?”

    A pretty good definition of closed minded people. Could it be that they are mostly…….closed minded?

  38. Ymarsakar Says:

    I don’t think it matters if they are close minded.

    In fact, killing people in war is easier if your side is close minded and doesn’t start asking too many questions about the other side.

About Me

Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

Monthly Archives


Ace (bold)
AmericanDigest (writer’s digest)
AmericanThinker (thought full)
Anchoress (first things first)
AnnAlthouse (more than law)
AtlasShrugs (fearless)
AugeanStables (historian’s task)
Baldilocks (outspoken)
Barcepundit (theBrainInSpain)
Beldar (Texas lawman)
BelmontClub (deep thoughts)
Betsy’sPage (teach)
Bookworm (writingReader)
Breitbart (big)
ChicagoBoyz (boyz will be)
Contentions (CommentaryBlog)
DanielInVenezuela (against tyranny)
DeanEsmay (conservative liberal)
Donklephant (political chimera)
Dr.Helen (rights of man)
Dr.Sanity (thinking shrink)
DreamsToLightening (Asher)
EdDriscoll (market liberal)
Fausta’sBlog (opinionated)
GayPatriot (self-explanatory)
HadEnoughTherapy? (yep)
HotAir (a roomful)
InFromTheCold (once a spook)
InstaPundit (the hub)
JawaReport (the doctor is Rusty)
LegalInsurrection (law prof)
RedState (conservative)
Maggie’sFarm (centrist commune)
MelaniePhillips (formidable)
MerylYourish (centrist)
MichaelTotten (globetrotter)
MichaelYon (War Zones)
Michelle Malkin (clarion pen)
Michelle Obama's Mirror (reflections)
MudvilleGazette (milblog central)
NoPasaran! (behind French facade)
NormanGeras (principled leftist)
OneCosmos (Gagdad Bob’s blog)
PJMedia (comprehensive)
PointOfNoReturn (Jewish refugees)
Powerline (foursight)
ProteinWisdom (wiseguy)
QandO (neolibertarian)
RachelLucas (in Italy)
RogerL.Simon (PJ guy)
SecondDraft (be the judge)
SeekerBlog (inquiring minds)
SisterToldjah (she said)
Sisu (commentary plus cats)
Spengler (Goldman)
TheDoctorIsIn (indeed)
Tigerhawk (eclectic talk)
VictorDavisHanson (prof)
Vodkapundit (drinker-thinker)
Volokh (lawblog)
Zombie (alive)

Regent Badge