I’m not sure Peter Suderman entirely thought this one through:
What can explain liberals’ widespread failure to anticipate the Court’s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren’t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives—first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. “The results,” he writes in the May issue of Reason, “were clear and consistent.” Moderates and conservatives were the most able to think like their liberal political opponents. “Liberals,” he reports, “were the least accurate, especially those who describe themselves as ‘very liberal.’”
Well, first off, I have to admit I’ve never been terribly impressed with Haidt’s research and how he applies his “audio equalizer” framework of moral psychology. In my experience, liberals have plenty of moral concerns which fall under liberty, loyalty, sanctity, authority and so forth, and which derive from group-based morality rather than individual-based morality. It’s just that Haidt’s imagination is too limited by the taxonomies of the current American political landscape to tease them out.
But let’s assume Haidt’s work is air-tight. What does the research cited by Suderman tell us? Well, it tells us that liberals only consider some of the metrics in their own moral reasoning, so they more regularly fail to predict the reasoning of individuals who bring all the metrics into account. Which may well be true, but that has nothing to do with liberals’ anticipation of the the inner intellectual workings of the Supreme Court Justices — or, at least, Suderman had better hope it doesn’t.
If it does, then liberals failed to anticipate the ruling precisely because they failed to anticipate the personal subjective moral reasoning of the Justices. Which is an implicit admission that, in overturning the mandate, the Justices will have substituted their personal subjective moral preferences for objective jurisprudence. Which, you know, is precisely what they’re not supposed to do. That would vindicate liberals’ suggestion that the Court’s conservatives have descended into right-wing partisan hackery.
Rulings are supposed to be based on the text of the Constitution, jurisprudence, and previous precedent. These things provide an objective grounding the personal moral whims of the Justices do not. Liberals were hitherto confident of victory because they assessed that text, jurisprudence, and precedent, and concluded that within those parameters the arguments against the mandate didn’t have a leg to stand on.
While we’re on the subject, I do think Jonathan Adler has a more plausible theory for what may have happened: Namely, because of left-leaning ideological homogeneity and a certain institutional group-think, a lot of the legal academics have lost touch with the Curt’s immediate on-the-ground thinking. Since commentators and journalists relied on those academics to asses the case against the mandate, that failure became conventional wisdom. Assuming the Court does in fact strike down the mandate — which I still think is exceedingly unlikely — this seems like a plausible explanation.
I would note that Adler’s group-think theory is perfectly compatible with the hackery theory. If the legal academic world has become too insular, then the conservatives on the Court finally going round the bend is precisely the sort of thing it would fail to pick up on.