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Tablet Magazine, a periodical that focuses on Jewish life, has a detailed feature about the Volokh Conspiracy, its founder Eugene Volokh, the other conspirators, and how these band of right-wing libertarians fit into the broader Jewish zeitgeist. I was quoted in a few places about the role the Volokh Conspiracy–though notably not Eugene himself–played in the debate over the ACA:

 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.”

…

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.”

Kudos to everyone at VC for shaping the debate, and the way lawprofs can influence the world.

One of my favorite SCOTUSBlog features (other than Box-Count) are Mark Walsh’s reports from inside the court. His post on McCutcheon has some great personal moments from the Justices.

This seems like a classy nod from the Chief to the dissent:

Roberts then makes a noticeably respectful nod to the dissent that would soon come from one of his colleagues.

“There’s a thoughtful dissent today,” he says, one that performed its function of forcing the majority to think through its conclusions. At this moment, Justice Stephen G. Breyer turns to his the neighbor on his right, Justice Sonia Sotomayor, and gives a wry smile.

And Breyer seems to have reciprocated:

Breyer says he will focus on the Chief Justice’s plurality opinion, and he departs from even his own printed bench statement, to call it “a good opinion, though I don’t agree with it.”

And some humor from Breyer:

“Today the Court overrules Buckley and strikes down a similar ceiling [on overall contributions] as unconstitutional,” Breyer says. “The Court substitutes for the current two-year overall contribution ceiling of $123,000, the number infinity.”

He pauses and a few people chuckle at that. “If the Court in Citizens United opened a door, today’s decision may well open a floodgate,” he says.

There is more tapping into the Citizens United vein. “Taken together with Citizens United, today’s holding, we fear, eviscerates our nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to support.”

Alas, Lessig’s TUMBLR of every founding-era use of the word “corruption” was not cited by the Court. Lessig faults the liberals for not looking to his originalism.

But the striking fact about McCutcheon is that the government didn’t even try. Originalism is not the language of liberals. It’s beneath them—the weapon of the enemy. So the government’s brief didn’t even hint at the argument that there was no good originalist reason to restrict the meaning of “corruption” to quid pro quo corruption alone. And Justice Breyer in his classically geeky dissent doesn’t even hint at the possible originalist inconsistency—even though the core of his argument is precisely that “corruption” does not mean “quid pro quo corruption” alone.

I previously blogged about Judge Posner’s judicial fashion show. In a case that concerned how long it took to put on and take off protective gear, Judge Posner took the fact-finding into his own hands by holding a fashion show in chambers. His staff doffed and donned the gear, and Judge Posner recorded it. This story was picked up by the ABA Journal, and got a a lot of play in their weekly email.

The attorney representing the plaintiff haw now filed a petition for rehearing en banc.

Here is the relevant portion of the brief:

Finally, the majority found that donning and doffing during the half‐hour meal break was de minimis as a matter of law based on “information”1 gleaned from an “experiment” conducted in chambers by a judge and three unidentified members of this Court’s staff.2

2 No aspect of this experiment is a matter of record, including when or exactly where it was performed, who was present, the videotape generated, the methodology used, the identities of the participants (called “actors” by the majority) or what instructions they received and by whom. Of course, having never received notice of the Court’s intention to conduct an experiment, counsel for the parties were not present and apparently neither was dissenting Judge Wood. What role, if any, counsel would have played in such an experiment is unclear, as presumably the Court would not permit examination of its members or staff.

Petition for Rehearing En Banc – Mitchell v. JCG Industires

I usually rely on SCOTUSBlog for fair and accurate reporting, but this post of McCutcheon by Lyle Denniston is odd. Two statements jump out at me.

First, the opening sentence:

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors.