Part of my concluding essay in my new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC co-bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel) deals with the impact of the VC and the blogosphere on the case. Here is an excerpt:
What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”
In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….
But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was