Or so this article in The Atlantic argues.
In December 2009, when Barnett coauthored a paper calling the individual mandate unconstitutional, his ideas were outside the mainstream. But a year later in Virginia, U.S. District Court John Henry Hudson used the same language when he overturned the law in his courtroom. On that day of that decision, Barnett told Politico, a left-wing legal expert sent him an email saying, “As of this morning, your theory is officially not frivolous anymore.”
Stories like these provide a window into a conversation that has not proceeded much beyond the dazedwonderment of academics for about 18 months. But they leave a crucial question. Why have armies of scholars and commentators spent two years waging this battle not only in the courtroom but in the court of public opinion?
Barnett demurs when pressed on the question of the influence of his public arguments on the courts. “It’s not like I’m the Alec Guinness character in Star Wars,” he told me, “and I’m able to wave my hand and say, ‘These are not the droids you’re looking for.’ . . . All I’m doing is making legal arguments.” But Dahlia Lithwick, writing in Slate last week, thinks the outcome of the case has “everything” to do with “optics, politics, and public opinion.”
And on Volokh:
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 thepost 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 heresponded 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 themandate 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.
And on the new “legal populism”:
But the democratization goes deeper than that. The conservative legal movement that started in the Reagan era brought along with it a new legal populism. The Tea Party, with “taking back the Constitution” at the center of its rhetoric, has only further spread the idea that elites have hijacked the judiciary, obscured the Constitution’s clear meaning, and used the courts to further a leftist political agenda.
Ilya Somin is not persuaded by this piece, on several fronts:
Finally, Teicholz writes as if it is somehow unusual for lawyers to be “waging this battle not only in the courtroom but in the court of public opinion,” suggesting that Randy’s dual role as lawyer and public advocate is particularly “unusual for an appellate lawyer.” In reality, two-track strategies in important constitutional cases are far from new. The abolitionist movement arguably pioneered this kind of approach in the 1840s and 1850s when they challenged the Fugitive Slave Act and other pro-slavery laws. The NAACP pursued a similar strategy since the early 1900s, as have feminists, environmentalists, the gay rights movement, gun rights advocates, property rights supporters and many others. Randy’s role is also far from “unusual” among lawyers involved in high-profile constitutional cases of this kind. As far back as the 1940s, Thurgood Marshall was both the lead appellate litigator for the cause of black civil rights and a major public spokesman for that cause. These historical precedents (many of them by left-wing movements) are what led me to suggest back in March 2010 that a similar strategy could work in this case.
What happened here is just one of many examples of conservatives and libertarians adapting strategies that were mostly pioneered by the political left. Such borrowing from the left is at the heart of much of what conservative and libertarian activists for legal change have achieved over the last thirty years. Ironically, some on the left don’t recognize the influence of their own tactics when they are adopted by adversaries. Perhaps they should recall that imitation is the sincerest form of flattery.
See also Politico:
Kerr said last week that he’d slide his prediction of a 1 percent chance of success for the challengers to about 10 percent now.
“It became kind of a political cause on the Republican side. … Over time, arguments that were initially thought to be kind of off-the-wall have become politically mainstream,” Kerr said. “That has really changed the ground underlying the case. It is still an uphill battle.”
And the Times.