While the subject of the Individual Mandate hasn’t launched a thousand posts around the criminal blawgosphere, it’s caused the murder of a million words among legal academics. No surprise, given its controversy and importance. In the aftermath, it’s also given rise to a new round of lawprof mudwrestling. 

Via Ilya Somin at Volokh Conspiracy :

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

Advocacy is unethical? It might sound ridiculous to advocates, as it’s what comes naturally to us.  But it’s not merely advocacy, but advocacy unsupported by the belief that their position is legally correct rather than merely the writer’s desired outcome.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert… with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

There’s the hitch, that scholars who advocate for a position, even if it’s not really supported by their “expert judgment,” undermine the “veneer of academic respectability.”  In other words, they’re selling out their lofty position as scholar to achieve a desired end.  Kinda like being a prosecutor, I suppose.

The reason this is problematic amongst lawprofs is that their “opinions,” according to themselves, “shaped the narrative.”  After all, if a lawprof says a law is constitutional, doesn’t the Supreme Court pull out its big old rubber stamp?  While trench lawyers count votes at First Street, the justices count up the articles by lawprofs and whichever side gets the most votes wins the day.

Dave Hoffman called baloney.

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?

To put this more simply, no one cares what the warring tribes of scholars have to say except to the extent that someone can cite to them in support for a facile way to explain the result desired by the Court.  That they huff and puff amongst themselves is fun to watch, but the arrogance of believing that they “shape the narrative,” and the rest of the world watches and learns at their bended knee makes an outsider chuckle. 

The academics are aware that judges don’t read their brilliant law review articles, much to their chagrin. Do they seriously suspect that Justice Kennedy is lurking on Volokh Conspiracy nightly to figure out which side to vote for? 

The notion of their opinion being truly more worthwhile because of their veneer of academic respectability is one that frightens me enormously.  Imagine if this were true, and important decisions were left in the hands of a bunch of smart but  “youthful” folks who were so seriously lacking in real world experience that they couldn’t be trusted to find a courthouse, no less figure out what to do once they were inside.  They live a cloistered existence, largely talking and fighting among themselves except when the odd reporter calls for an opinion about a subject they know nothing about, yet can’t wait to offer their views.  Shaping the narrative is all the rage.

The question remains why it’s unethical for a scholar to advocate for a position she supports. On a practical level, are lawprofs not allowed to believe in a greater right and wrong, and seek to promote what they believe is right?  Even if they recognize the validity of arguments against their belief, as does pretty much any thinking person even though they lack the respectability of a scholar, does that preclude their belief that their desired position enjoys sufficient, if not greater, validity to be worthy of their support? 

The suggestion that supporting and advocating for positions they support is somehow improper strikes me as a mechanism to silence the opposition, to quell disagreeable views. If a scholar advocates a position which is laughable, then let other laugh at him for it. But that others disagree with a lawprof’s argument doesn’t crack the veneer of respectability, or implicate respectability at all. We’re allowed to disagree. Even smart folks are allowed to disagree.  Even smart folks are allowed to put greater stock in a position that may not be the orthodoxy.

To the extent academics have any impact on the narrative, it seem unethical (if that word has any real implication in espousing views in which one believes) to remain silent or state a position that supports the opposite of what a scholar thinks is the best course.  Put on your big boy lawprof pants and support the view that you think is right, even if other guests at the party think otherwise.

A few years ago, I wrote that we either stand for something or stand for nothing, with an homage to the J.H. Blair coal miners of Harlan County, Kentucky.  Are lawprofs better? There’s nothing unethical about standing up for what you believe in.