He and they are the subjects of a properly admiring profile, one that describes very accurately the scope of the Conspiracy’s influence:
Last week, when the Supreme Court heard arguments over whether religiously owned corporations like Hobby Lobby should be exempt from providing contraception coverage to their employees, the government’s reply brief cited dozens of cases and statutes—and one blog with a weird name, The Volokh Conspiracy.
It wasn’t the first time the site made itself heard before the nation’s highest court. In the wake of the passage, in 2010, of the Affordable Care Act—the cornerstone of President Obama’s domestic agenda—libertarian writers for The Volokh Conspiracy were instrumental in building the constitutional challenge to the law’s individual mandate. “When the Affordable Care Act was going through the legislative process, most law professors agreed that the ACA was constitutional,” said South Texas College of Law’s Josh Blackman, who wrote the definitive scholarly account of the challenge.
Then The Volokh Conspiracy entered the fray, and everything changed. “Usually these kinds of legal arguments develop over the course of many years in law reviews, in conferences and symposiums,” Blackman continued, “but this was on warp speed. You had blog posts on the day where you could actually see the arguments shaping before you.” Soon the challenge was being hotly debated among law professors and was adopted by state attorneys general across the United States. What the legal establishment once considered an open-and-shut laugher turned into a 5-4 Supreme Court nail-biter.
It was, perhaps, the first time that a highly technical legal debate on a matter of national policy importance—the sort of discussion usually confined to law reviews, academic panels, and conference rooms at the Justice Department—played out in real time for the consumption of lay readers as well as professionals, and it cemented the site’s role as a public clearinghouse for cutting-edge legal debate. As Paul Clement, the former U.S. solicitor general who represented the 26 states opposing Obamacare, put it, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had The Volokh Conspiracy.”
Not too many blogs wield that kind of power and fewer still deserve to. On both counts, the Conspiracy is an exception. I’ll note another interesting passage as well–one that provides ample justification for the Conspiracy’s political orientation:
. . . a significant influence on Volokh’s outlook—and that of several other contributors to the blog—has been the Soviet Jewish refugee experience. Having grown up in families that experienced firsthand the oppressive potential of untrammeled state power, these individuals naturally gravitated toward libertarianism, with its deep-rooted suspicion of government overreach. “Those of us who share that story share the same reason for why we became libertarian,” explained Sasha Volokh, now an associate professor at Emory Law School.
“If I had been born in the United States and I had the same kind of personality and interests that I do, I think there’s a good likelihood I would have become a liberal or even more left-wing than that,” said Ilya Somin, a professor at George Mason University who has written about his family’s encounter with Soviet repression and anti-Semitism, and who joined the blog in 2006. “But the experience of coming from the Soviet Union made that a lot less likely, and therefore made me more open to becoming a libertarian.”
We would, of course, live in a much better world if more people would appreciate what a number of the Conspirators know deep in their bones.