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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.”

But though the blog was unabashedly of the right, its politics were—and are—not so much partisan as ideologically committed to a general philosophy of libertarianism, which emphasizes individual rights and a profound skepticism of state power. Thus, posts supporting limited government and gun rights mingle with those supporting gay rights and drug legalization. An atheist, Volokh advocates a robust, if not unrestricted, conception of religious liberty. Underlying all these stances is a consistent preference for personal freedom, wherever it leads. “I think I’ve always had a ‘presumption of liberty,’” said Volokh. “Generally speaking, people should be free to do what they like, unless there’s a really good reason to stop them.”

Some of this worldview stems from Volokh’s academic research. For instance, despite growing up in a home without a gun culture, he became an advocate for gun rights after examining the data on the efficacy of gun control laws, and concluding that many did not substantially curb crime. But 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.”

One way the Russian Jewish experience manifests itself on the blog is in the realm of foreign policy, where many of the “conspirators” tend to be more open to American intervention abroad than others in the libertarian community. As Tyler Cowen, a George Mason professor and former Conspirator, puts it, Soviet immigrant writers at the blog are more inclined to back such action “because they understand what it’s like to live under tyranny.” Most notably, when many libertarians—like isolationist former Texas Congressman Ron Paul—opposed the Iraq war, seeking to avoid overseas entanglements, others at The Volokh Conspiracy supported it.

“I do leave more room for intervention than some libertarians,” Somin explained, “because I know that the alternative to many interventions is not free markets or individual freedom, but rather much more oppressive regimes than anything that would likely be put in place by an intervention by the U.S. or its allies.”

Similarly, The Volokh Conspiracy is also generally sympathetic in its outlook toward Israel, a topic that frequently divides the libertarian community. “Since many of the Western enemies of Israel are so conspicuously un-libertarian, I think many libertarians sort of have the sense that if the Noam Chomskys of the world are against Israel, we should be for it,” Volokh told me. “But at the same time, there’s also a very substantial isolationist, non-foreign-interventionist wing of the libertarian movement that says ‘Why are we involved in Israel?’ ” Writers at The Volokh Conspiracy who discuss Israel fall decidedly into the former camp, even as they are often critical of its policies. Somin’s George Mason colleague David Bernstein makes the libertarian case for Israel quite succinctly. “Would it be a more libertarian world if there was a Palestine in place of Israel?” Bernstein asked when we spoke. “That’s pretty hard to imagine.”

But without question, the blog’s primary impact has been on the American domestic front, from disputes surrounding eminent domain to the case against the Affordable Care Act. Indeed, the Obamacare challenge exemplified how The Volokh Conspiracy has radically transformed the legal landscape. In the past, the academy often looked askance at blogging as a distraction from more serious legal writing, to the extent that some professors initially joined the Conspiracy under pseudonyms to conceal their involvement. Today, however, blogs have become the driver of the discourse. “The way law professoring used to work was that you would spend a year writing a law review article, you would workshop it among other professors, and maybe in 18 months, it would come out in a printed book that no one would ever read,” explained Blackman, the South Texas professor. “Now a case is decided and within a few minutes you can post a few hundred words on a blog, which becomes now the narrative shaper —and I think you can credit that to Eugene Volokh and the other conspirators.”

***

Political scientist James Q. Wilson once said that the trick to being a successful conservative in the overwhelmingly liberal realm of academia was to “be twice as productive and four times as nice as your colleagues.” It’s a dictum that perfectly encapsulates Volokh, who despite his manifold achievements—“He’s somehow managed to find more than 24 hours in the day for all the things he does,” said co-blogger Jonathan Adler of Case Western University—is unfailingly gracious, both in writing and in person, toward ideological friends and foes alike.

“Tolerance,” he has written, “means acknowledging that even if people may be wrong in one thing that means a lot to you, it doesn’t follow that they’re wrong in all things. It means (among other things) being willing to see the merits, if there are merits, in people who believe things that you think are wrong, foolish, or even evil.” It’s a generous philosophy that will be put to the test now that the Conspiracy has joined the Post, where many readers—judging by initial comments—are less inclined to be generous back after reading Volokh and his fellow bloggers’ arguments in favor of conservative causes like gun rights.

Volokh, for his part, seems to relish the challenge of preaching to the unconverted. “I hope the payoff will be a broader reach for our ideas,” he recently wrote, “which is why we blog in the first place.”

***

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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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