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

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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. You can reach him at daveweigel@gmail.com, or tweet at him @daveweigel.

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—”

WE! LOVE! OBAMACARE!

“—want to see this legislation repealed outright—”

WE! LOVE! OBAMACARE!

“—or they want to see the individual mandate repealed.”

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.