After he wrapped, I asked Reed whether it would be preferable to take the law apart after an election, or to count on a court to toss it out. “I always think it’s far better for a law to be repealed by legislative action,” said Reed. “Unfortunately, given the fact that the Senate wouldn’t even allow a vote on that, and that Obama would veto it, we’re sort of agnostic about how it goes.”
Spin like this is rooted in total confidence. It’s two years since the bill became law, and it still isn’t popular. One sign that popped up all over the conservative rallies, Zelig-like, reprinted a recent Gallup poll that had 72 percent of Americans—54 percent of people who like the law!—rating the Affordable Care Act “unconstitutional.” Conservatives won a long, complicated argument in the court of public opinion. But that’s not the court they’re picketing right now.
And they don’t want to leave anything to chance. At Saturday’s rally, before the oral arguments began, a number of speakers demanded a recusal from Justice Elena Kagan, who was Obama’s first, less-tongue-tied solicitor general. Letting her hear the case, said the Judicial Group’s James Christopherson, would be “roughly similar to a football coach leaving the football game at halftime, then returning as a referee.” John Whitley, a congressional candidate who showed up in his medical coat, asserted confidently that “Kagan should take a vacation, even though we know she will not.”
At Monday’s big rally, I spotted seven signs making some version of that same argument. IMPEACH KAGAN THE UNETHICAL. JUSTICE KAGAN: RECUSE YOURSELF. One sign quoted the statute that asks judges to “disqualify themselves” if they’ve worked on a case and added JUSTICE KAGAN: OBEY THE LAW!
“She helped set up Obamacare,” explained Frank Ferguson, a realtor whose sign read KAGAN’S VOTE IS UNETHICAL. “There might not be a controlling legal authority that can take her off the case, but I don’t think her vote should count. I’ve got a high school education and even I know that.”
Joe Figliola, a businessman based in Washington, D.C. proposed a compromise: Kagan should stay on the case but get only half a vote. Even if far-fetched, this idea, just like a full-on recusal, would up the likelihood of the law’s repeal. “It was obvious cronyism that put her on the court,” reasoned Figliola. “Her history requires recusal, to any fair-minded person.” It was fair to wish her off the case, and to imagine a glide path for victory over the law. “It’s the contrast between the public mood and the way the system works, right? You’re down to the nine Supremes, when popular opinion is 70 percent against it.”
Two years ago, when they rallied, conservatives were trying to sway public opinion and to spook the less freedom-loving members of Congress. They have far less sway over the nine members of the Supreme Court. If they overturn the law, it won’t be because they defeated it legislatively; it may be because Republicans have appointed one more justice than Democrats have. That would mean victory. That would be good enough.