Did the Volokh Conspiracy Kill the Individual Mandate?

Over at The Atlantic, Adam Teicholz has an interesting essay on the role of blogs in the shaping of the debate over the individual mandate. It includes the following remarkable passage about this blog:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate. The answer had become clear to him under existing precedent; he now felt certain that the mandate was a goner.

Barnett says he blogs on Volokh as an “opportunity to refine legal arguments in response to pushback.” He agreed to attend a Washington University panel on “Bloggership,” the confluence of scholarship and blogging, but he played Pinky (“Blogging…can contribute constructively to one’s scholarship…but it would be a mistake to confuse” them) to Volokh-founder Eugene Volokh’s Brain (“Maybe, when I’m in the middle of writing a law review article, I should ask myself: Shouldn’t I be spending this time blogging instead?”). Yet Barnett also acknowledges in conversation that “justices, law clerks, lawyers, legal writers” are “a part of the legal culture and I’m part of the legal culture.” Trying to convince that set of people that your arguments are “on the wall,” he continued, is just “standard law practice.”

And two former Supreme Court clerks confirmed that online ideas and moods “definitely reach clerks, and can inform thinking of the bench memos,” the documents clerks write to prepare their justices for oral argument and opinion-writing. And blogs like Volokh certainly have increasing influence over the traditional media. Liptak of the Times said that he takes note of what legal blogs have to say about cases he’s covering.

I think this vastly overstates the influence of the blog. But it seemed worth posting.

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