The Blog Heard ‘Round The Court

Mar 30 2012 @ 12:18pm

Adam Teicholz wonders if posts on a conservative legal blog may have set off a chain of events resulting in the mandate's possible defeat: 

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…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 [Volokh contributor Randy] 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.

Volokh anti-mandate writer Ilya Somin challenges Teicholz's theory:

Randy and I also initially believed that striking down the mandate would be more politically difficult for the Supreme Court than is likely actually to be the case. That’s because we (or at least I) failed to foresee that the mandate and the health care bill as a whole would remain so unpopular for so long. I’d like to think that some of that unpopularity was the result of our efforts. But the lion’s share was surely caused by other factors. If we really had the power to swing public opinion massively, I would long since have persuaded the public to oppose the War on Drugs and support legalization of organ sales. Where we did have some influence is in debunking the myth that the constitutionality of the mandate was a no-brainer backed by an overwhelming consensus of expert opinion. But we could not have done that were we not 1) recognized academic experts on these issues ourselves, and 2) able to point to other well-known experts who also believed the mandate to be unconstitutional, many of them not VC-ers.