Why did legal elites underestimate the arguments against the mandate?

I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.

This divide explains why so many legal academics were dismissive of some of the concerns raised in this week’s oral arguments, such as the need for a limiting principle. The Solicitor General’s office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go. Even if Koppelman were right as a matter of first principles, he’s clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn’t know it from what he’s written.

Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia.