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The Volokh Conspiracy Is Out To Get You—And Everyone in America

Run by a Soviet Jewish legal scholar, the blog took on the ACA and is now hosted by the ‘Washington Post’

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Professor Eugene Volokh. (Collage Tablet Magazine; photo courtesy of UCLA School of Law.)
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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.”

Founded as a solo operation in April 2002, the site is now one of the Internet’s most-read legal blogs, boasting a diverse readership of scholars and policymakers—as well as Supreme Court Justices—across the ideological spectrum. (Justice Elena Kagan has said she reads it daily.) In January, The Volokh Conspiracy moved to the Washington Post, giving it an even more prominent role in the national conversation—and more power to shape the discourse surrounding issues currently being decided in the courts, from religious freedom to gay marriage.

How did a center-right blog written by libertarian-leaning professors become the most influential in American legal circles? The story begins with its founder and namesake, a Soviet Jewish refugee named Eugene Volokh.

***

In 1975, Volokh arrived with his parents in the United States from Ukraine. The family settled in California; five years later, Volokh was admitted to UCLA on a full scholarship after scoring 780 out of 800 on the mathematical portion of his SAT. It would have been an impressive achievement for any student, let alone any recent immigrant—but Volokh was also just 12 years old at the time. In 1981, the Los Angeles Times ran a profile in which the writer dubbed Volokh a “prodigy, a genius, or, simply, staggeringly bright,” and reported his IQ at 206. He chose to attend UCLA, the article noted, because he wanted to stay close to home—and because he wasn’t old enough to drive.

While still in high school, Volokh had begun working as a professional computer programmer, and he continued in the industry for six years after graduating UCLA, writing software for Hewlett Packard. But then he got bored. “I really liked computers,” he told me over brunch during a recent visit to New York, “but I felt I’d hit a plateau.” The young Volokh had grander aspirations. “I wanted to be involved in public policy debates,” he went on, “and I realized that especially back then, public policy debates were mostly run by lawyers.”

So, he went to UCLA Law School, not quite sure if it would pan out. “I thought to myself,” he recalled, “if it looks like I’ll be an unsuccessful lawyer, I can just quit.” But it turned out that Volokh was quite a good lawyer, and after graduation he went on to clerk for Judge Alex Kozinski on the Ninth Circuit Court of Appeals and then for Supreme Court Justice Sandra Day O’Connor. Now 46, Volokh is a professor of law at UCLA and widely acknowledged as one of the country’s preeminent experts on the First Amendment.

But it was in 2002 that he started the site that would revolutionize the law’s place in the public discourse. At the time, the conservative blogosphere was just beginning to take off, led by University of Tennessee professor Glenn Reynolds, who launched InstaPundit. Reynolds offered Volokh a guest-blogging gig there, and he was soon hooked, enamored with the ability to disseminate his views in real time to a popular audience.

“I’m a law professor and I’m a Jew, and we both like to hear ourselves talk,” Volokh said wryly. “I’ve always wanted to spread my ideas; I think that’s an important part of my job—not just to speak to a little corner of the academy, not just to speak to the professionals like judges and lawyers, but to speak to the public on public policy.”

While Volokh had published op-eds in prominent forums like the Wall Street Journal and the Washington Post, he found the format restrictive with its word limits and reliance on the whims of editors. Blogging, on the other hand, had no such impediments. “It was something that was tailor-made for my temperament, which was to speak out about what I want, when I want, the way I wanted,” he said. “Now that I mention it this way, it sounds kind of self-indulgent. But what’s wrong with self-indulgence?” He grins. “I mean, no one else is going to indulge you, so you might as well indulge yourself!”

And so he launched his own blog, drawing on his technical acumen to build the site. He quickly invited his brother Sasha, then a graduate student at Harvard, aboard and christened it The Volokh Brothers. In the following months, the blog added several other libertarian-leaning voices and became The Volokh Conspiracy—a nod to Hillary Clinton’s line about being hounded by a “vast right-wing conspiracy.”

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The Volokh Conspiracy Is Out To Get You—And Everyone in America

Run by a Soviet Jewish legal scholar, the blog took on the ACA and is now hosted by the ‘Washington Post’