In their two days of interrogating Supreme Court nominee Amy
Coney Barrett, Senate Judiciary Committee Democrats deftly executed Minority
Leader Chuck Schumer’s messaging strategy: “Health care, health care, health
care.” Over and over, they skewered Republicans for, as typified by Senator Kamala Harris, “scrambling to confirm this nominee because
they need one more Trump judge on the bench before November 10 to strike down
the entire Affordable Care Act.” That result, Democratic questioners constantly
reiterated, would strip affordable insurance coverage from over 20 million
Americans and subject “more than 100 million Americans with preexisting
conditions” to denials of coverage or exorbitant premium charges. By thus
focusing on the real-world impact of terminating Obamacare and spotlighting
Judge Barrett’s record of disparaging 2012 and 2015 Supreme Court decisions
that upheld the law, they alarmed viewers and visibly rattled their Republican
colleagues wary about the upcoming election.
Here’s the bad news: What the Democrats’ strategy did not do was dent Barrett’s defense of the legitimacy of her approach to making her decision, whatever result she chooses. Predictably, she insisted that she simply “applies the law as written,” letting the chips fall where they may, in line with the “textualist” credo she espouses.
To that defense, Senate Judiciary Democrats, also predictably, did not respond at all. Chronically, Democrats and liberals assume that, especially in political fora like a Senate hearing, the target audience—television and streaming viewers—care only about the real-world stakes in legal clashes. They disdain messaging to show why they, and not their opponents, care or are right about the law, as well as about real-world results. In this conceit, Democrats and liberals are wrong. Ordinary people tend to care most about threats to their welfare. But when a legal dispute is on the table, experience shows that they also care about whose side the law is on, and why.
Republicans and conservatives do not make this mistake. They come up with catchy lines to mass-market their legal claims. When Democrats and liberals offer no response, conservatives win by default.
I know this from painful personal experience. During the months and years leading up to the ACA’s first encounter with the Supreme Court, in 2012, I worked with ACA proponents in and out of the Obama administration, crafting strategies to build public support for upholding the law. Around those conference tables, advocates consistently spurned suggestions to rebut ACA opponents’ legal messaging. Our opponents’ attack lines stressed that the ACA individual mandate was unconstitutional because, “if the feds can make you buy insurance, the feds can make you eat broccoli.” Though widely lampooned, this sound bite cogently packaged their core legal argument—that the administration’s interpretation meant that there was “no limiting principle” to the intrusive reach of federal power under the Constitution’s interstate commerce clause.
The administration and its allies never surfaced a counter to ACA opponents’ legal messaging. It was hardly surprising, then, that two months before the oral argument, a Gallup poll on public attitudes toward the ACA litigation reported that 54 percent of respondents who supported the ACA thought it was unconstitutional. They had, after all, never heard anything to the contrary. In such an environment, conservative justices could have felt unconstrained by potential public backlash to an anti-ACA decision—as evidently did the four conservative dissenters, who stridently demanded wholesale invalidation of the law.
In the current constitutional debate over Obamacare, the embrace of “textualism” by anti-ACA conservatives like Judge Barrett serves the same function as the broccoli sound bite served in 2012: Endlessly repeated, that moniker attests to the bona fides of their claim that they scrupulously follow the law. Democrats need to pierce that balloon.
Democrats have, thus far, passed on a golden opportunity to impugn conservative claims to unique fidelity to the law “as written.” But there’s no reason why they couldn’t frame this critique during the remainder of Barrett’s confirmation battle and amplify that message after her expected accession to the court. Democrats should not get ensnared in a wonky kerfuffle over whether “textualism” is a sound interpretational methodology. Their goal is not to titillate liberal legal scholars. Instead, they should expose the “textualist” mantle flaunted by Barrett and her allies as a fluid, fair-weather pose; a catechism that’s been historically manipulated, or even ignored outright, in whatever measure is necessary on any given day to advance conservative political agendas from the bench. Conservatives’ undying zeal to ax the ACA is the matter before lawmakers today, but anything those lawmakers might want to do on behalf of the American people is equally at risk.
In the hearing, Democrats repeatedly quoted Barrett’s hyperbolic written assertions that the court’s decisions upholding the ACA “pushed the Affordable Care Act beyond its plausible meaning” and were “illegitimate.” But they laid out her verbal salvos solely to heighten the prospect that, on the court, she would vote to strike down Obamacare. They did not challenge the accuracy, let alone the sincerity, of the substance of her critiques of past Supreme Court decisions upholding the ACA, nor did they cast doubt on her assurances that, in the pending case, her vote would be driven by fidelity to legal text, not by political or policy-based hostility to the law. That should change.
Democrats should have called Judge Barrett out for misrepresenting Chief Justice Roberts’s extensively documented opinions, and they can now. Contrary to her mischaracterizations, he relied on the text of the ACA—on multiple provisions of the whole statute taken as a coherent whole. It is her blinkered, gutting interpretation that willfully misreads the statute.
At a minimum, hers is hardly the only plausible interpretation. Her insistence to the contrary—that the court’s upholding the ACA was not merely wrong but “illegitimate”—seems so patently disingenuous as to suggest an agenda other than searching for the correct reading of the law. Democratic senators should stress that what she labels “textualism” seems more like a slogan, a cover to rationalize a transparently political agenda: cherry-picking the statute to rip isolated provisions out of context, to justify striking down or dismembering laws they dislike. Today, it’s the ACA in the crosshairs, but the conservative judicial strategy goes far beyond gutting the Obama-era health care law. Indeed, in numerous other challenges to progressive statutes like the ACA, Supreme Court conservatives have frequently deployed the same “textualist” song and dance.
If Democrats harbor any hope of advancing an agenda under a Biden presidency, they need to cure themselves of this allergy to political messaging and put the remaining days of Barrett’s confirmation to good use, arming the public with the means to start generating a public backlash against the GOP’s judicial designs. Unmasking conservatives’ pretextual “textualist” swipes at the ACA will not only dent Barrett’s credibility, it will also lay the groundwork for discrediting any attempts by a newly right-shifted Supreme Court to apply that cynical business model to the upending or evisceration of other liberal landmarks, both past and future.