The Supreme Court has received a lot of undue praise for its decision to save the Affordable Care Act this year, but the real thanks should go to the tens of thousands of people that mobilized during Justice Amy Coney Barrett’s confirmation fight to demand that she and the Court’s five other conservative justices show respect for the democratic process by protecting their health care.
Most commentators have chosen to ignore the role of these activists and the progressive organizations that joined them following the Court’s 7-2 decision in California v. Texas, choosing instead to applaud the apparent “moderation” of the Court’s conservative block while also criticizing progressives for their legitimate concerns about the Court’s direction. This is both a mistake and a profound misreading of history, and it greatly undersells the power and importance of sustained public pressure on the Court.
Nearly every media outlet that covered Texas AG Ken Paxton’s audacious challenge to the Affordable Care Act recognized early on that the challenge was based on an extreme legal theory and was highly unlikely to hold up in the Supreme Court. The fact that such a case was able to even find its way to the Supreme Court, however, underscores just how right the progressive activists marching against Barrett truly were.
To make it before the Court, Texas’s challenge had to first be accepted in its entirety by a conservative judge in federal district court, and partially affirmed by a panel of conservative judges on the Fifth Circuit Court of Appeals. As the case was making its way through the appeals process, President Trump’s Justice Department publicly sided with Texas, declaring that it would not defend the ACA before the Supreme Court and that the administration wanted to see the law overturned. Ultimately, two conservative Supreme Court Justices did vote to support Texas’s challenge, even though the case itself was widely considered farcical across the legal community.
Given this reality, there’s every reason to believe that the extraordinary pressure progressive activists and organizations put on Justice Barrett and the Supreme Court’s other conservatives was an important factor in the Court’s ultimate decision. These activists were able to dictate the tone of Barrett’s hearings and put their lives and concerns front and center for the American people to hear.
Protesting in a Pandemic: Some Activists Risked Their Lives to Protect Their Health Care
For over a year, activists tied the fate of the ACA directly to the effort by President Trump and the Republican Senate to pack the courts with conservative extremists. They had previously come together to oppose Chad Readler, a circuit court nominee who had signed the Justice Department’s brief arguing against the ACA. Then just as the pandemic was taking hold of the nation, Trump advanced two circuit court nominees with egregious records on health care. Brett Kavanaugh protégé Justin Walker, nominated to the D.C. Circuit, had called Chief Justice Robert’s ruling upholding the ACA “indefensible” and “catastrophic.” Cory Wilson, nominated to the Fifth Circuit — which had ruled against the ACA in the case that advanced to the Supreme Court— had described the law as “illegitimate” and “perverse.”
A total of 53 groups — including health care advocacy groups like Protect Our Care, Little Lobbyists, Health Care America Now, the Center for Popular Democracy and others — came together in a joint letter urging the Senate to focus on protecting the American people from COVID-19, not advancing judges who would strip their access to health care away. “At a time of a worldwide pandemic,” the letter read, “now is not the time for the Senate to prioritize the confirmation of judges who are committed to taking away health insurance through the courts for millions.”
As Walker and Wilson’s nominations plowed ahead regardless, the groups again came together for two different digital rallies opposing their confirmation. Joined by civil rights groups and senators including Chuck Schumer, Richard Blumenthal, Sheldon Whitehouse, Mazie Hirono, Bob Casey, activists made clear that stopping these Trump judges was essential to protecting our health care. It might not have been safe to gather in person, but that wasn’t going to stop their voices from being heard. “So many of the battles we thought we won don’t stay won; eternal vigilance is required from all of us,” Hirono warned.
With the nomination of Amy Coney Barrett to the Supreme Court just weeks before oral arguments in the ACA case, there was every reason to be concerned that the conservatives on the Supreme Court were just as eager as the Republican attorneys general who filed the case to overturn the ACA. Trump explicitly promised he would nominate justices who would overturn the ACA, and their records reflected this. Justice Gorsuch had voted to invalidate part of the ACA while on the Tenth Circuit, Justice Kavanaugh had written a “roadmap” to invalidating the law while on the D.C. Circuit, and Barrett had openly criticized the Supreme Court’s previous rulings upholding it.
Thousands of Americans responded by risking their lives by marching and protesting in person during a pandemic that had already claimed the lives of hundreds of thousands of people. And once again, these same groups came together to tie the legitimacy of the courts to the future of the ACA. Speakers from a wide array of progressive organizations joined two more massive digital rallies to describe the stakes of overturning the ACA, and pushing millions of people off their health care. Speakers included Erin Gabriel of Little Lobbyist, Richard Trumka of the AFL-CIO, Fatima Goss Graves of the National Women’s Law Center Action Fund, and Alphonso David of the Human Rights Campaign.
A number of everyday Americans also joined these rallies to share their stories about what the ACA meant to them. People like Peter Morely, who has 10 preexisting conditions and made the trip from New York City to Washington, D.C. 32 times over a three-year period to advocate for protecting the law.
.@morethanmySLE has over 10 preexisting conditions. He's sharing his story because he knows exactly what millions of Americans face if Amy Coney Barrett is confirmed to the Supreme Court and votes to overturn the ACA. #WhatsAtStake #OurCourtOurVoices pic.twitter.com/r1lhe0Y3T6
— AFJ Action Campaign (@AFJAction) October 26, 2020
.@lpackard talks about when she was first diagnosed with cancer & how difficult it was to get health care insurance before the #ACA. If Amy Coney Barrett is confirmed, millions of people will face that reality. #WhatsAtStake #OurCourtOurVoices pic.twitter.com/PtZ2PhTKY4
— AFJ Action Campaign (@AFJAction) October 26, 2020
Lessons for the Future: The Power of Protest for Holding Courts Accountable
Given the obvious willingness of far-right judges to overturn a democratically enacted law that had already survived two previous constitutional challenges before the Supreme Court, the impetus to speak out for health care isn’t going away. There are still senators who knowingly voted to confirm those judges and justices, and there are likely to be future challenges to the ACA.
We should celebrate the tireless activists who stand up for every American’s access to health care and hold them up as a model for what popular pressure can do in the face of an increasingly authoritarian conservative legal movement. Conservatives will increasingly look to the federal courts to achieve policy objectives that could never be enacted through democratic means, and we must fight back to ensure they cannot prevail. What the protest movement against Justice Amy Coney Barrett has proven is that the Court is not immune to the forces of public pressure. Neither are the Senators who vote to confirm right-wing ideologues to the court, and activists must hold these elected officials accountable as well.