"Intellectual honesty isn't just refraining from lying," says UCLA law professor Eugene Volokh in the newest Reason Podcast. "It's mentioning the arguments against you and explaining why you think that they're mistaken, as opposed to just omitting them, hoping that the audience isn't going to catch on."
Volokh is the founder of The Volokh Conspiracy, "one of the most widely read legal blogs in the United States" [which] "has more influence in the field—and more direct impact—than most law reviews." The blog is written by mostly libertarian and libertarian-leaning law professors and court watchers, so we're excited as hell at Reason to now be hosting the Volokh Conspiracy on our website. It will remain editorially independent from Reason, though all of our readers will find much of interest and value in its content, which ranges from in-depth yet accessible glosses on the most important legal cases of the moment to disquisitions on pop culture.
Volokh explained to me a few weeks ago that the blog began chafing under its home at The Washington Post partly because of that publication's paywall and partly because the newspaper would censor curse words even when they appeared in court documents that Volokh conspiracists were analyzing. When Volokh suggested Reason.com would be a good home for the blog, I instantly agreed, only adding that we would insist on publishing curse words even when they weren't strictly necessary.
In a wide-ranging interview about The Volokh Conspiracy, Volokh discussed the site's aims, why he thinks the government is sometimes right to force business owners to serve customers they don't like, and his high opinion (so far) of Donald Trump's appointments to the federal judiciary. In an age of deep polarization and intellectually mendacious debates, the Volokh Conspiracy remains a straight shooter when it comes to pursuing what its contributors see as the truth. "I hope even our libertarian readers appreciate that," says Volokh, "because then they know that when we do take a view that they agree with more, that's because we really, sincerely believe it and think it's the best argument, and sometimes perhaps they see that there are some points in which conservatives, or even liberals or moderates, might be more correct than the libertarian orthodoxy."
Audio production by Ian Keyser.
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This is a rush transcript. Please check any quotes against audio to ensure accuracy.
Nick Gillespie: Today, we're talking with Eugene Volokh. He's a UCLA law professor and perhaps better known as the proprietor of The Volokh Conspiracy, a long-running legal group blog that I am excited to announce is coming to Reason.com. After being its own site and then being perched at The Washington Post for a long time, it is now coming to Reason.com. Eugene, thanks so much for talking to us.
Eugene Volokh: Thank you very much for talking to me.
Gillespie: Let's talk about The Volokh Conspiracy, which is obviously the premier group legal blog on the planet, I'm willing to say. There are, I guess, certain parts of Africa and some of the 'Stan' countries, I'm not familiar with their law blogs, but I'm pretty sure that The Volokh Conspiracy is still big there, too. What is the aim of The Volokh Conspiracy, for listeners or readers of Reason who may not be fully familiar with it?
Volokh: Sure. We're mostly law professors, and we blog mostly about law. We also blog about whatever we please. Part of the aim is to have fun, for us to have fun, but the way we have fun is by talking to the public and often hearing back, and then talking back in the comments and in follow-up posts. Mostly, it's about stuff that we know a good deal about, which is to say American law. Some of us are experts on criminal law, some on First Amendment law, some on gun policy, some on business law, and often there are things in the news, whether it's new cases or new controversies, that we actually have something to say that's basically specialized knowledge that a lot of our readers find interesting. We, of course, have our own opinions, but we try to be objective and fair-minded about these things.
Gillespie: Well, you have points of view, right, but you are scrupulously fair. You strive to be scrupulously fair in your argumentation. Right? You don't miss … I mean, it's not a court case, right, where you might misrepresent the other side's case in order to win an immediate legal victory. This is a blog of ideas and of serious consideration.
Volokh: Yes. That's absolutely right. We are academics, generally speaking, and we speak in our voice as academics, which is to say that we're supposed to be intellectually honest about things. I should say, by the way, in a court case, trying to misrepresent the other side is often a very bad move. It's not for the ethical, but in any case, it's often not very effective. Likewise, trying to misrepresent the precedents isn't very effective, but one difference between being a lawyer and being an academic is, as a lawyer, it's often okay not to identify the strongest argument against your position, whereas as an academic, you have to talk about, if you're going to be serious about talking as an academic, you have to talk about the possible weaknesses of your case as well as the strengths.
That's, I think, the difference between honesty as such and intellectual honesty. Intellectual honesty isn't just refraining from lying. It's mentioning the arguments against you and explaining why you think that they're mistaken, as opposed to just omitting them, hoping that the audience isn't going to catch on.
Gillespie: Now, you have a couple of dozen people who are affiliated with The Volokh Conspiracy, and then either a core group that's smaller than that that blog virtually every day, or some of them do. I'm looking at the list of people. There are people like David Kopel, David Bernstein, David Kopel of the Independence Institute in Colorado, David Bernstein of George Mason. Yourself, obviously, your brother, Sasha Volokh, who worked at Reason years ago and is now a law professor himself. Ilya Somin at George Mason. Jonathan Adler at Case Western. Many of these people have published in Reason, or we discuss their work quite a bit. The cast of the site is mostly libertarianish, but not exclusively so. Is that accurate?
Volokh: That's right. We're basically, let's say, moderates, libertarians, and conservatives. Some of us are more on one side, one of those points than another, but I like your saying 'libertarianish.' That's how I think of myself. I agree with libertarians on many things. I don't agree with them on all things. I tend to be, where I disagree with libertarians, I tend to be more on the conservative side, but most importantly, for purposes of our blog, we never feel we need to toe the party line. We never feel that we need to be libertarian or be conservative. In fact, I think we feel that we need to depart from the line when we think we know something that doesn't sit well with the line. For example, sometimes I talk about court cases, and I point out that the legally correct result under the precedents, it's not the libertarian result. Maybe we might like to have a Constitution that's more libertarian than ours, but in many ways our Constitution is majoritarian rather than libertarian, and that's what we say.
I hope even our libertarian readers appreciate that, because then they know that when we do take a view that they agree with more, that's because we really, sincerely believe it and think it's the best argument, and sometimes perhaps they see that there are some points in which conservatives, or even liberals or moderates, might be more correct than the libertarian orthodoxy.
Gillespie: I'm a big fan of defining libertarianism as an adjective rather than as a noun. I think it's a tendency, a direction, a starting point, not necessarily a strictly prescribed set of beliefs. I'll point out that even as you were talking about where you depart from libertarian orthodoxy, I guess, which should be a paradox, but it's … Randy Barnett, who is considered one of the great libertarian legal eagles around, is also a vibrant member of your community at The Volokh Conspiracy. Tell me, why do you call it The Volokh Conspiracy?
Volokh: Well, so I was, in 2002, trying to come up with a name, and I thought, 'Well, how about The Volokh Gang?' Because that sounds fun and a little edgy, and just shows a group-
Gillespie: Wait. The Volokh Gain?
Volokh: Gang. The Volokh Gang.
Gillespie: Gang. Okay. Yes. Yeah. Yeah. Okay. Yeah.
Volokh: Then I realized there was a show on television, a public affairs show, I think it was called 'The Capital Gang,' and I thought, 'Well, people would think that we are kind of trying to rip them off, or that we're, at the very least, that we're derivative, and we certainly don't want to be derivative.'
Volokh: 'Okay, well, how about-'
Gillespie: Who wants to be derivative, especially in law, where everything is based on what came before? It's a cardinal sin to be derivative, isn't it?
Volokh: Yeah, well, there's a line, is that law is the only discipline in which the phrase 'That's an original idea' is a pejorative. But in the academy, we're always supposed to be original, and for what's more, it's more fun to be original. Okay, so it can't be 'gang.' I thought, 'Well, how about The Volokh Group?' Then I realized there was also a TV show, I think 'The McLaughlin Group,' I think-
Gillespie: That's right. Yeah.
Volokh: … it was. 'Oh, no, not that.' Then, remember this was in 2002, not long after all this talk about the vast right-wing conspiracy. I thought, 'Well, how about The Volokh Conspiracy?' Then also of the charter members of the blog, three of us were Jewish, so I also thought, Jewish conspiracy. Well, that's a fun little connection, too, and of course, the absurd thing is that a conspiracy would call itself The Conspiracy on a webpage, so how about The Volokh Conspiracy? It's fun. It's absurd. It's intriguing. Now, I will say, since then, at times I've heard people say, 'Look, I'm reluctant to pass along your stories to my friends, because they're going to think that this is a conspiracy theory website.'
On the other hand, the flip side is that at times, I remember looking in our referrer logs, and people were looking for conspiracy theories. They found our blog. Now, they may have been disappointed, but maybe they got enlightened. At this point, though, it's too late to change. At this point, this is our brand, and this is what we're going to have to stick with, but yeah, the goal-
Gillespie: So you're not going to be like Philip Morris and rebrand yourself as Altria or Blackwater, the private army company. You're sticking with The Volokh Conspiracy, right up until when The Protocols of the Elders of Zion finally get a fair hearing from the American public.
Volokh: That's a good idea. Maybe we should have called it The Volokh Protocols. That would have been better still. Oh, well. Too late.
Gillespie: You mentioned where you individually depart from kind of libertarian orthodoxy. You recently filed a brief in a lawsuit that is, this is a hot topic in libertarian circles about whether or not cake bakers should be forced to, in the most extreme hypothetical, should a … Well, let me make sure I'm getting it right. Should a Christian conservative cake baker have to bake a gay Nazi wedding cake, or something like that? There's more. I mean, what you filed in was an actual cake case where a baker was fined for refusing to serve, to bake a cake for a gay wedding, citing a religious exemption. A lot of libertarians say, and I would say not all, but this is enough to say it's kind of the dominant line of thinking, 'Hey, you know what? There's something wrong when you're compelling a person in business to do something they don't want to do. That's the very definition of government force.' You actually have a different point of view. Could you explain your point of view and why you think it's consistent with a broad-based limited government point of view?
Volokh: Sure. There are basically three kinds of arguments one can make on behalf of the baker, constitutionally speaking. One argument is a basic liberty argument. People shouldn't be forced to do what they don't want to do. People shouldn't be forced to put in their time and effort and labor into tasks that they disapprove of. I appreciate the moral force of that argument, and I appreciate the pragmatic force of that argument. I am ethnically Jewish. My wife is not. When we got married, what if the cake baker had said, 'I don't approve of interfaith weddings'? Or what if the caterers had said the same thing? I would have wanted to go with somebody who actually is enthusiastic about supporting our wedding rather than somebody who I'm going to kind of force into it.
But those are not valid constitutional arguments under American constitutional law. You could imagine a constitutional regime that bars this kind of compulsion. Maybe it would be a good one, but it's not the one we have. There's no clause in the Constitution that prohibits this kind of compulsion. Some people point to the Thirteenth Amendment and involuntary servitude, but historically it's pretty clear that it's-
Gillespie: That means slavery.
Volokh: –much more aggressive than that. Exactly. Now, the second argument is religious objection. Shouldn't people have a right to decline to do things that they view as religiously sinful? It turns out that in this case, at the Supreme Court level, that argument is going to be a loser. There are religious exemption regimes in America, but they're mostly state by state or jurisdiction by jurisdiction. In federal court, you can raise a federal Religious Freedom Restoration Act argument with regard to federal statutes. In some states, you can raise similar arguments under state constitutions or state laws against state statutes, but at the U.S. Supreme Court, when it's reviewing a state court decision, I don't think there's a viable religious objection claim to be made, just because the federal Free Exercise Clause has not been interpreted as requiring such religious exemptions.
Gillespie: The case that we're talking about took place in Colorado. Correct?
Volokh: Exactly. It occurred under Colorado-
Volokh: … law. That's-
Gillespie: … and Colorado law. Yeah.
Volokh: That's the difference between that and say, Hobby Lobby, which did involve a religious objection, but it involved a religious objection to federal law. It was raised in federal court, and there the federal religious exemption statute was in play, but that only applies to federal statutes.
Gillespie: In the Hobby Lobby case, that had to do with the individual … Well, I guess not so much the individual mandate, but the argument that businesses had to supply a certain level of healthcare that included birth control that the owner of Hobby Lobby, it's a privately held company, thought were effectively abortifacients, so he didn't want to cover certain types of pills or devices like IUDs. Do you think the Hobby Lobby case was decided properly?
Volokh: I think it probably was, because the majority made a persuasive case that giving an exemption to the company was called for by the statute, because any government interest in making sure that employees got access to these kinds of contraceptives could be fulfilled equally well through other means, in fact means that the administration had already set up with regard to employees of religious institutions. Essentially, because providing these kinds of contraceptives is actually cheaper for insurance companies than not providing them, because they avoid pregnancy, which is an expensive medical condition from the insurance company's perspective, because of that, the insurance companies would provide these even outside of the employer-provided insurance. So there were basically mechanisms, kind of an accounting gimmick but essentially an effective one, that made sure that the employees could get access to these things without burdening the employer's religious practice. That's what these statutes really called for, is to say, 'Look, when you can accommodate a religious practice without much injury to government interests, without much injury to third parties, then in that case you should.'
Gillespie: What about the third case about the cake baker?
Volokh: Right, so the third argument that is at the heart of this case is the free speech argument. Dale Carpenter and I, my co-blogger Dale Carpenter, was also the co-author of this brief, had argued in a previous case involving a wedding photographer that compelling people to photograph, that is a speech compulsion and thus unconstitutional, because photography is expressive conduct. It's the creation of photographs which are treated as speech for First Amendment purposes. But while the First Amendment is very important, the Free Speech Clause is very important, and it does go beyond literally speech in the sense of moving one's lips and tongue and creating sounds that are recognizable words, it doesn't go everywhere. There are limits in the Free Speech Clause, and our view was that baking cakes is not speech. Even baking beautiful cakes is not speech-
Gillespie: But we're really talking about decorating, right? Because didn't the baker say, 'Hey, I'll bake you a cake, and I'll put frosting on it, but I'm not writing anything on it'?
Volokh: Well, no. It turns out in this case what happened is, the baker, as soon as he heard that this was for a same-sex ceremony, said, 'No, I'm not doing anything for you.' The lower court specifically said that this is not a case where there was a requirement that he write words or even put in symbolism that is recognizable as pro-gay rights symbolism. That, we think, would be a different case, but on the facts of this case as they were understood by the lower court and as they come before the U.S. Supreme Court, the question really is, is baking a cake expression? Is it speech for Free Speech Clause purposes? We think that it's not, that there's a line that needs to be drawn with-
Gillespie: How do you define that, though? There's a whole food network that's going to tell you on a quarter-hourly basis that food and cuisine are expressive. They're artistic. They are more than simply, they're more than the sum of eggs and flour and lard.
Volokh: They certainly are more than the sum of eggs and flour and lard. My mother wrote a cookbook, which I was pleased to be able to cite in our brief. Always cite your mother, whenever possible.
Gillespie: Yeah, well now-
Volokh: For the art of-
Gillespie: … this is the Jewish conspiracy right here, right?
Gillespie: It's always about mom. Yeah.
Volokh: Well, non-Jews love their mothers too. The art, her book is called The Art of Russian Cuisine. The word 'art' is used to refer to a lot of things in the sense of something that is either beautiful, or let's say art as opposed to science, but not all of that is protected by the First Amendment. These lines have to be drawn, even if there are some things that come close to the line. One way of thinking about it is with regard to not speech compulsions, but speech restrictions, where the same issue comes up. If a city says, 'For protectionist purposes, we're going to allow only one newspaper in town,' clearly unconstitutional. I think if a city says, 'We're only going to allow one photographer in town,' I think also unconstitutional, because photography is the creation of First Amendment protected speech.
By the way, there have been cases where cities have said, 'We won't allow tattoo parlors.' In recent years, courts have struck those down, although the view of lower courts is not unanimous, but I think it's right that tattooing is also speech, even if it's writing on skin rather than on paper. But-
Gillespie: That's the ultimate canvas, isn't it?
Gillespie: The most dangerous canvas-
Volokh: … some people go-
Gillespie: … perhaps?
Volokh: Yeah. The most, the canvas that causes the most occasion for regret, let's just say.
Gillespie: Yeah, but now you're not going to go Leviticus on me now and say, 'The Bible, the Old Testament, for God's sake, is against tattooing.' Right?
Volokh: No. No. That's not my objection to tattooing. If my kids want to get tattooed, I will have objections, but that will not be one of them. In any event, on the other hand, if a city were to say, 'Look, for protectionist reasons, we're going to allow only one bakery in town,' or as in the famous slaughterhouse cases, 'We're only going to allow one slaughterhouse in town,' that doesn't violate the First Amendment. It may be bad. It may be contrary to liberty. It may be bad economics, but the First Amendment isn't about slaughterhouses, and it isn't about bakers. It's about speech, and not everything that's beautiful, not everything that is expressive in the sense that every person's work expresses, so if they really are into it, their love for the job.
The First Amendment, in order to provide strong protection, it has to provide protection that's focused on a particular range of things. If you enlist the First Amendment as a generalized restriction on all government regulations, in practice what'll happen is, it'll be a very weak restriction on all government regulation.
Gillespie: Which may not be a bad thing, from a libertarian point of view.
Volokh: Well, a broad but weak restriction, broad restriction that the government can often overcome-
Gillespie: Yes. I see what you mean. Okay.
Volokh: … may not be as good as a narrower but strong restriction, but in any event, I agree that a broader view of constitutional liberty might be better from libertarian perspective. It might even be … I mean, I tend to … If it came up to vote, I might be in favor of a new amendment that protected liberty more, although really what it would do is it would protect liberty that the judges happen to recognize as liberty. In any event, that's not the Constitution we have. That's not the legal rules we have, and I can say that given the legal rules that we do have, I think the baker ought to lose, even though Dale and I had filed a brief saying photographers ought to win. One purpose of our brief is to tell the court, 'This isn't all or nothing. If you think the baker should lose, don't throw the photographers under the bus together with the baker.'
Gillespie: Or with the cake. It makes a big mess and all that work. Nobody can eat it. Right? Nobody can enjoy it-
Gillespie: … if it's under the bus.
Volokh: What a waste of perfectly good cake, whether or not-
Gillespie: Here, because lawyers are always coming up with hypotheticals, what if the couple had said, 'Okay, we want you to … ' You can do this, you mentioned kids, if you've been to birthday parties, you know that they can now put pictures on the frosting on the top of a birthday cake, what if the people had said, 'We want you to put this picture of us, this artistic expression, on top of the cake, using current frosting technology'? Would that transform the cake into an act of expression?
Volokh: I think that the baker should, at that point, have a First Amendment right to say, 'Look, I'll bake you the cake, but you've got to find somebody else to put the words, or the symbols, or the pictures on it.' Again, that is consistent with the lower court decision which set that matter aside. How a court would ultimately decide on this, I don't know, but I think it should decide in favor of the baker, not because so much the cake is transformed as that we're asking the baker to do something different. We're not just asking to bake a cake that will be used in a ceremony. We're asking him to actually write or record in a tangible medium a message, whether it's visual or textual, and that is something that we think, at least that I think, the First Amendment doesn't allow the government to compel. The compelled speech doctrine should protect the baker in that situation.
Gillespie: Before we move on to the topic of Trump and the federal judiciary, let me close out this discussion by asking you, because this goes to the heart, I think, of a lot of libertarian thought, which, to be honest, I think is half-baked, and I'm sorry to use that pun, or not particularly thoughtful of the sociological and the legal context in which anti-discrimination laws, federal anti-discrimination laws, were passed, particularly in the '50s and 1960s. You mentioned we have a Constitution which, on the one hand, is majoritarian. A majority of people have a broad ability to pass laws that limit what people can do or structure how we do things, regulate how we do things, but then there are certain things really that are not up for a majority vote, constitutional rights that can't be broached or legislated away.
A lot of libertarians are bothered by anti-discrimination laws, because they see that as transforming private spaces into public spaces, and then demanding that certain things happen. I mean, do you make a positive case from a kind of liberty perspective for things like civil rights laws that redefine a movie theater, a hotel, or any business that is open to the public, that it has to accept all comers without discriminating against them?
Volokh: Well, I think people have studied this, including libertarians, and they reached different results on this. That's not what I focus on. I focus on the question of, first of all, what's the legal scope of these laws? They actually vary a lot from state to state, as well as from locality to locality within the states, and I ask, what are the constitutional limits in those laws? I think those limits are narrow, that is to say that generally speaking there is no constitutional objection to anti-discrimination law, but I think are present. For example, anti-discrimination law does not allow the government to require the Catholic Church to hire women priests alongside male priests. Likewise, I think, Free Speech Clause protects the rights of expressive organizations, for example like the Boy Scouts, to choose their own speakers. That was the Boy Scouts v. Dale case, where the Boy Scouts were allowed to exclude an assistant scoutmaster who was a pro-gay rights activist and was himself gay.
There are these limits. You can imagine other limits as well. Let's say prostitution is legalized, as it is legal in a few places in Nevada, and let's say that, just as photographers have been viewed as public accommodations, even when it's just basically one person doing the photography, let's say that a prostitute is treated as operating a business that is a place of public accommodations. Not a bordello, but just the prostitute herself with her own services.
Gillespie: Or himself, please.
Volokh: Exactly, exactly. Then it seems to me that there would be a constitutional right for her to say, 'I'm only going to have sex with people of one particular sex,' or, 'I'm going to, even, have sex with people only of a particular marital status, or, for that matter, a particular race." We may approve or disapprove of the prostitute's judgments on this, but it seems to me that there is a right of bodily integrity there that the government cannot trump, even when the sex takes place for commercial purposes.
Gillespie: But that would not be the case for a restaurant saying, "We're only going to serve married people," or, "We're only going to serve men," or, "We're only going to serve blacks."
Volokh: Right. Under current constitutional law, there is no general right of association, as such. There is a right of expressive association. That's the right of, say, various ideological organizations to, among other things, pick and choose who's going to be a member, in many situations. There's a right of intimate association. That's a right to choose, in some measure, whom you're going to have sex with. Another example is that there was a case in the Ninth Circuit a while back which had to do with roommates discriminating based on various attributes in whom they allow as roommates in their own apartment, and the court suggested that that would be protected by right of intimate association.
There are these narrower rights, there are also religious freedom rights of religious institutions, but they are narrow, again, because the Constitution does leave so much to political decision-making process, and sometimes, the … Often, the political decision-making process gets it wrong. But as between having these decisions be made by legislators and having these decisions be made by judges, generally speaking, the Constitution leaves most such decisions, but not all, to legislators.
Gillespie: I mean, I guess what I was getting at, too, with the libertarian immediate hostile reaction to all forms of anti-discrimination law, particularly when we're talking about racial discrimination in the South, and actually through most parts of the U.S., in the post-war era, it often overlooks the fact that these laws were addressing state and local laws that were explicitly racist, that forbade certain types of interaction, so it gets complicated very quickly. I think this is, I hope that the people listening recognize that the way you're talking about this in incredibly intellectually serious and, I think, honest ways, as well as very accessible ways, that's exactly what you see on the pages of The Volokh Conspiracy.
Volokh: That's what we try. Then again, occasionally, we have little puzzles, and we have observations about weird words and weird bits of legalese. Just today, I blogged a query which, on its face, has to do with the Supreme Court, but at the risk of giving away the answer, it isn't really a legal question at all. We try to make it fun, as well as making it substantive.
Gillespie: Tell me a little bit. You're obviously … I mean, you are the kind of impresario of The Volokh Conspiracy, but it's multivocal, which is also fun. It's like Reason's Hit & Run. It's a group blog, which is great, because if you get tired of one person or one voice, you can listen to others, and occasionally, you guys engage one another, and interact, and argue, which is great. You have a pretty fascinating American story. You are an immigrant. Your parents were immigrants. Can you tell me where you're from and how your experience in Russia, how does that affect your attitude towards not just government, but society, and culture, and freedom?
Volokh: Sure. I was born in Kiev, which was then in the Soviet Union, but really what it was is, was in the Russian Empire. If I'm ethnically anything other than American, I might say that I'm Russian, because Russian was my native language. I don't recall even hearing Ukrainian spoken, I was seven when we left, in the circle in which my parents traveled. Kiev was just a very Russified city at the time. My parents had long despised the Soviet system. For a long time, nobody could get out, and even in the mid-'70s, basically only Jews and a few other ethnic groups were allowed to get out. But when Jewish immigration was allowed, thanks, by the way, chiefly to American Jews, in fact chiefly to liberal American Jews who politically in many ways we probably would have disagreed with, they applied to immigrate and they were allowed to immigrate.
In 1975, when I was seven, my parents and my brother and I came to the U.S., and shortly afterwards joined by my mother's parents who lived with us, both in Russia and here. My parents, as a result of their experience in Russia, ended up being Republicans, and I'd say more conservatives than libertarians. They were never terribly socially conservative on kind of the culture war issues, in part because they were never religious, but they were foreign policy hawks. They saw Reagan as telling it like it is on communism, and the Democrats of the late '70s and early '80s as basically being soft on communism and missing the evils of communism.
They also figured, "We don't like socialism in the Soviet Union. We don't like the steps, even if compared to the Soviet Union minor, steps towards socialism that's in, the Democratic Party are pushing." In general, they were in favor of police power, I think in part because their view was, while the police were obviously abused, just like courts were abused by the Party for political ends in Russia, they were abusive, you need police and you need strong protection against crime and other such things. I think they were probably pretty solid Reagan conservatives. How much my Soviet experience influenced me, probably very little. I was seven when I came, and I feel it influences me some, but in minor ways. I think their Republicanism probably influenced me in many ways. Their free market support made me open to the values of free markets. I like to think that I've independently reached that result, but I think it helped that free markets and laissez-faire were not dirty words in our household, but-
Gillespie: Your mother, who I've met a couple of times, Anne Volokh, was a caterer of great distinction, as well as the publisher of Movieline magazine, so she's quite an entrepreneur.
Volokh: Right. She wrote this cookbook. She co-owned a restaurant. She published Movieline magazine. Yeah, and my father and I were partners in a small software business that we co-founded, so we were businesspeople, and we appreciate business. It's always hard to tell how much particular events from one's childhood mold one's attitudes in various ways. Probably, they often do, but not always in the most obvious senses of the matter. I think it's very hard for somebody growing up in the family I grew up in to be blind to the evils of communism the way that, unfortunately, many in America, especially these days, but even back then, were blind to it. But beyond that, I think I was probably influenced in some measure, but I can't, sort of, draw a link between my view on the flag-burning decisions, let's say, and my experience in the Soviet Union.
Gillespie: Let me turn to, as a final topic to discuss, what do you think about Trump and the federal judiciary so far? He, partly because Barack Obama left a lot of vacancies in the federal judiciary, Donald Trump has the ability to really have an impact on appointing judges who will be around for decades. Is he on the right track? What are the highlights so far, as far as you're concerned, and what are the lowlights?
Volokh: Yes, so there are many things to quarrel with the administration on, but in my view the one area in which they have done a really good job is picking top-notch judges. I'm sure that you can find some exceptions, but of all of the judges that I happen to know who were picked by the administration, they're really all superb. Neil Gorsuch is an excellent example. I actually know him from clerking. He clerked for Justice White and Justice Kennedy the same year I was clerking for Justice O'Connor. So I knew him since then. I followed his career. Excuse me, I knew him some then, and I followed his career since then, and he's just really a very, very smart and thoughtful guy.
Gillespie: When you say a judge is really good or is really fine, is it because they come to results that you agree with, or is it the process by which they get there? Is it a mix? How much of that is just kind of confirmation bias of, "I think this guy is smart as a whip, because he agrees with me 90% of the time"?
Volokh: Well, I think human beings being who we are, we do tend to see more virtues in those we agree with and more vices in those we disagree with, but here, I am speaking just about intelligence and about, let's just say to the extent that we have this information about them, judicial craft. I think then-Judge Gorsuch's opinions of the Tenth Circuit, he served about 10 years on the Tenth Circuit before being appointed to the Supreme Court, were really very well-written and very thoughtful, and not always predictably hard-line conservative. All the indicators that we have of intelligence suggest that he's very, very smart indeed. I think you can tell by talking to him, but even beyond that, his credentials, the fact that he had a Supreme Court clerkship, which is something that, generally speaking, one gets only if one does very well in law school, which is not perfectly correlated with intelligence, but there's a pretty strong correlation there.
Likewise, if you look at some of the other nominees, one who has recently been confirmed whom I've also known a long time, Stephanos Bibas, is one of the top criminal law scholars in the country. Now, he's very conservative, although not super-duper conservative. I'm sorry, Judge Bibas now sits on the Third … Excuse me, has been confirmed for the Third Circuit. He will be sitting in Pennsylvania. He's not a Supreme Court Justice, but he is an appellate court judge, and I think he will be…excellent…. Again, he's a scholar of great distinction, and completely setting aside his politics, I think if you heard of a president nominating a judge with those kinds of credentials, you'd say, "Yeah, those are the kinds of people you should be nominating." Incidentally, he'd also worked as a prosecutor for several years, so he knows what he's talking about in criminal law.
The same thing is true, I think, of many other judges. Justice Willett from the Texas Supreme Court, who has been nominated for the Fifth Circuit, Jim Ho, whom I've also known for a very long time who's a lawyer in Texas and former State Solicitor of Texas, which is to say, the chief appellate lawyer of Texas, Texas government, has been also nominated to the Fifth Circuit. Allison Eid, David Stras. Really first-rate people. Now, as to their politics, my sense is, they're all going to be predominantly quite conservative. In some respects, they may have something more of a libertarian streak. Justice Willett, for example, in the Texas Supreme Court, wrote, I think, a very important pro-economic liberty opinion a few years ago, but on balance, they will be conservatives.
Gillespie: Don Willett also has possibly the greatest Twitter feed of any acting judge in the country as well.
Volokh: Right, right, and it's funny, and it's smart, and it's always quite apolitical, the way that a judge's Twitter feed ought to be. Recall, he has been, until now, a Texas Supreme Court Justice, which is to say, an elected official in Texas. It's actually pretty important for state-wide elected officials to maintain name recognition, especially when they're not the Senator or the Governor, many people don't know who their state Supreme Court Justices are, so I think he's been a very effective user of political communication that way.
In any event, so I think if what you're looking for is liberals, you're not going to get them from President Trump. If you're looking for libertarians, you're really not going to get any hardcore libertarians of, say, the Randy Barnett mold, from either party. On the other hand, if you're looking for smart, thoughtful conservatives who will, at times, at least some of them, have something of a libertarian streaks and, more broadly, will recognize the importance of protecting established constitutional rights that are actually there as part of our law, and who will, I think, at times, push back against the administration when they think the administration is going too far, I have found Trump's picks to be surprisingly strong along all these metrics.
Gillespie: There was a lot of talk, both in the Trump campaign, as well as in the chattering classes, when Trump, or actually Steve Bannon, his former advisor, talked about that the goal of the administration was to deconstruct the administrative state. Do you think the judiciary that he's putting in place will do that, that they will reliably, or that they have a preference for ending rule through bureaucracy, rather, and forcing issues back to Congress to actually write the laws that govern us?
Volokh: No, they're not going to deconstruct the administrative state. They may, in some measure, roll back some of the broadest aspects of the administrative state, but … One analogy might be what the conservative justices in the '90s did with regard to constraints in federal power vis-à-vis the state's, restricting Congress's power under the Commerce Clause. There were a few decisions, important decisions that signaled that, look, the Constitution sets up Congress as a government of enumerated powers. It's constrained by the Bill of Rights, but it's also constrained by the need to identify which power authorizes some government action, and the Commerce Clause, for example, and the Enforcement Clause of the 14th Amendment aren't belying checks to Congress. But what it did was basically move things from 100% federal power subject only to the Bill of Rights to, let's say, 95%. They weren't going to unravel more because the law is fundamentally a conservative institution, not in the political conservative sense, but in the sense that it doesn't change things very much very quickly.
Gillespie: Yeah. You don't go from A to Z. You go to A to B, basically, in terms of-
Volokh: Right, and sometimes, you can't even go beyond B because too much has happened, too many changes have happened in American government structures since the framing. I think the same thing is true with, will be true with regard to the administrative state.
Gillespie: Final topic, which is then, I have had conversations with Randy Barnett, the great libertarian law scholar, legal scholar, as well as Mark Tushnet, another legal giant who is much more on the progressive side of things or on the liberal or left-wing side. Each of them said that the Supreme Court, in general, it's not as big a game-changer as people think, that it more, it tends to certify either where society is or about where, where it's about to land, and so that instead of thinking of the Supreme Court as something that is going to revolutionize society, it's really something that tends to certify the social reality that is becoming a consensus. Do you agree with that?
Volokh: I think that's true in many situations, not all situations. I do think that the Supreme Court is, in many ways, more influential in the lower-profile things, which is interpreting particular statutes and broader legal principles that don't really hit any of the big-picture culture war issues but that are actually really quite important to the administration of the legal system. But when it comes to the big-picture culture war issues, yeah, I think by and large, it wasn't the Supreme Court that abolished slavery. It wasn't the Supreme Court that abolished segregation, ultimately. While there was the Brown v. Board of Education decision, it was ultimately Congressional action that was much more influential in this area, including the Voting Rights Act.
I do think that there are times when the court's decisions have been quite powerful and have not been just ratifying consensus. Roe v. Wade is an example. You may agree with it or disagree with it, but at the time, maybe things were going towards more liberalization of abortion, but they were going very slowly. If one does believe, this isn't my own view but of many sincere people, including libertarians, take the view that abortion is murder, if one does believe that, then in that case, Roe v. Wade was a very bad decision and a very influential decision. Maybe we would have gotten to that through the political process, but not at all clear, and if it had happened, it would've happened more slowly and in a, perhaps, narrower way.
Another example has to do with school choice, that one barrier to school choice for decades had been Supreme Court's decisions starting with the Lemon v. Kurtzman case, which essentially took the view that even when the government is providing kind of even-handed benefits to a vast range of schools, in fact, much smaller benefits to private schools than to public schools, it cannot include religious schools in a lot of those benefit programs. That, I think, interfered for a long time with school choice until the Supreme Court made clear that certain kinds of school choice programs are, that many kinds of them, are indeed constitutional. That was in early this century, early 2000s.
For decades, I think, school choice was blocked by that. But there again, though, I mean, school choice is now constitutionally permissible. It's not like it's sweeping the country by storm. There are some such programs in some places, but they're going along slowly because they're not always politically popular. Maybe that is an example of where, while the effect was real, it wasn't that vast.
Gillespie: Final question, what is a Supreme Court case in this current session that you … What is the case that you're most excited about, and which is the one that you worry about the most?
Volokh: Well, I don't worry a huge amount about Supreme Court cases. I do think that the Masterpiece Cakeshop case is an important case. I'm excited about it just from an intellectual perspective. It'll be interesting to see what the justices, who I think will have very interesting things to say about it, very kind of deeply-held views that they are going to articulate in interesting ways, it'll be interesting what they say about it. I look forward to blogging about it. I'm going to have to revise my First Amendment casebook just to include it. I think that that's a really important case. I can't think of any cases this term that come to mind that I say, "Oh, no, there could be real blow to liberty, or to the rule of law," or to other things, in this case. But the court sometimes surprises us, both with decisions that are unexpectedly interesting and good, and decisions that, in retrospect, we say, "Wow, that was really a mistake."
Gillespie: Well, we will leave it there. Thank you so much. We've been talking with Eugene Volokh. He is a professor of law at UCLA, and he is the proprietor and I guess the owner, the founder, the impresario behind The Volokh Conspiracy, a group law blog that is now at Reason.com. Eugene, thanks so much for talking.
Volokh: Very much my pleasure. Thanks for having me.
Gillespie: This has been the Reason podcast. Thanks for listening. I'm Nick Gillespie. Please subscribe to us at iTunes and rate and review us while you're there, and check out The Volokh Conspiracy, now appearing at reason.com.