Will the Supreme Court Deliver the Victory Conservatives Have Long Craved?

Who's winning, who's losing, and why.
March 27 2012 7:33 PM

By Any Means Necessary

Conservatives rally at the Supreme Court, desperate to get a win any way they can.

Tea Party protesters outside the Supreme Court.
Tea Party members of Atlanta, Ga., protest Obamacare in front of the Supreme Court on Tuesday

Alex Wong/Getty Images.

Over the last few days, every morning, conservatives have trekked to the steps of the Supreme Court and pushed on an open door. It had been two years since they failed to stop passage of Obamacare. It had been one year since a repeal bill passed the House and croaked on the way to the Senate. And here they were, getting one more hearing from a court with a 5-4 majority of Republican appointees.

David Weigel David Weigel

David Weigel is a Slate political reporter. 

If you didn’t feel déjà vu, you didn’t have a memory. On Tuesday, the well-funded Americans for Prosperity led a coalition of Tea Party groups in a good-sized rally across the street from the Senate, a short walk from the court. (The plaza in front of the building itself makes Zuccotti Park look like the Field of Dreams; big rallies, naturally, are being moved elsewhere.) Several thousand activists filled up the space, some of them in lawn chairs, almost all of them with signs. AFP provided free T-shirts in the very same color—red—that was used for an impromptu 2009 rally against a different version of the bill before it passed in the House. One sign near the speakers’ stage portrayed a hand sticking a knife in a fat sheaf of paper, with the legend, KILL THIS BILL. The word bill was scratched out, replaced by the word law.


“The Congress didn’t listen to us,” said Sen. Pat Toomey, a Pennsylvania Republican who won in a 2010 squeaker. “The president, unfortunately, signed the bill. Now, the last remaining branch of the government will have its say.”

How often does a defeated political movement get this many bites at the apple? In speeches and interviews, over a couple of days, the activists outside the Supreme Court deployed multiple—sometimes contradictory—arguments as to why the mandate-based health care law needed to die. Congress didn’t read it closely. The Congressional Budget Office had bungled the math. Ken Hoagland, the chairman of an ever-changing constellation of anti-tax and anti-Obamacare groups, said that the law had to be overturned because voters didn’t want it. “No law can be enacted without the permission of the people who will live in that law,” he said at a Saturday rally. “It’s called the consent of the governed.”

One wrinkle here: The hated, ousted Congress that passed the law had been elected, as had Barack Obama; mandate aside, they’d all pledged to reform health care. The governed had consented, at least for a while. Time for argument No. 2: Voters opposed the law as it stood. At a small Tuesday morning rally, over the din of Planned Parenthood volunteers bullhorning at them, conservatives told the crowd about polls that proved that the bill wasn’t popular. “We believe that this legislation is unconstitutional,” said Ralph Reed, the former Christian Coalition leader who’s mounted a comeback with his Faith & Freedom Coalition. “If you look at the CBS/New York Times poll today”—

WE! LOVE! OBAMACARE! chanted the Planned Parenthood protesters.

“The CBS/New York Times poll shows that 67 percent of the American people—”


“—want to see this legislation repealed outright—”


“—or they want to see the individual mandate repealed.”



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