Most public attention to health care reform turned to arguments in front of the Supreme Court. But while journalists and analysts interpreted every question, pause, and eye roll from the Supreme Court justices, activists took health care politics outdoors, offering clearer messages.
Initially supporters of the Affordable Care Act were visible in greater numbers, demonstrating the benefits of the law under challenge–even though most of it still hasn’t gone into effect.
By the second day of hearings, however, opponents of the reform were also out in numbers, expressing their opposition and their fealty to one vision of the Constitution. At left you can see the opposition arguments in crystallized form: the Bill of Rights, the Constitution, the flag, and charges that the Obama administration is socialist and immoral.
Meanwhile, demonstrators are using the occasion to put forward their vision of the most important issues in the bill; it’s another chance to demonstrate on abortion rights, for example, outside the Supreme Court.
What’s going on here?
Although it’s possible that some of the activists on each side believe their demonstrations will affect the Justices or a stray clerk by raising a new argument not present in the pounds of briefs filed by each side (the New York Times reports that advocacy groups filed a record 136 amicus curiae briefs), it’s hard to imagine many having faith in this notion.
The Justices may acknowledge the influence of many factors, not the least of these the Constitution. Justice Clarence Thomas says that they won’t be distracted by the protests, because they, like basketball players shooting free throws, learn to block out the noise to focus on the task at hand. Besides, any Justice could find a sympathetic demonstrator to justify whatever decision she or he chose to make.
But while the Justices ostensibly focus on legal arguments, the rest of the United States is focused on the Supreme Court. Activists want to crowd into that field of vision, knowing that their protest will get more attention from the broader public than any of the mountains of text in the legal briefs. And whatever the Supreme Court decides, the health care battle is far from over.
Supporters of the Affordable Health Care act wanted to show that the reforms had tangible–and positive–consequences. Note above the uniforms; at the demonstrations, there were plenty of stories. They won’t go away if the Court strikes down all or part of the law, nor will the 50 million or so Americans without health insurance. The costs of health insurance and health care will continue to increase, comprising the largest–and fastest growing–obstacle to controlling the deficit.
And if the Court upholds the law? All of the Republican presidential aspirants have promised to repeal what Rick Santorum and Newt Gingrich call “Romneycare,” and will surely campaign on the issue. And health care costs will continue to increase while opponents continue to insist on their vision of the appropriate interpretation of the commerce clause.
The demonstrations are reminders of these political realities, played more for a broad political audience than the Supreme Court itself. More than one side has taken to the streets. Ironically, there’s probably more discussion across those sides outside the Supreme Court building than in the Justices’ conference room.
Paradoxically, the loser in the Court is likely to gain the initial advantage in the streets. Striking down the law will rob opponents of their unifying focus and shift the emphasis in questions to Republicans on just what they will replace the reform with. (Not even the most optimistic and ideologically committed advocates think any of the proposed market-based reforms will extend health care coverage to more than a sliver of the uninsured.)
And it will energize those who have been working for health care reform–or benefiting from the first bits to come into effect–and provide them with a sharper political focus. Watch particularly for the reactions from the 2.5 million young adults (under 26) who have been able to continue to benefit from their parents’ insurance; watch for their parents reactions as well as they contemplate allowing their underemployed offspring fend for themselves in the insurance market.
If the Court upholds the law, opponents will be able to avoid the debate of what to do instead, and focus instead on the law as it exists. Every unhappy bit of news from the health care system will be evidence for their view of the laws inadequacies. And, at least for the short run, they will focus very directly on the upcoming elections.
I don’t know how to read Justice Kennedy’s vote from his questions or tone of voice, but I am certain that this issue isn’t going away any time soon–whatever the Court does. The demonstrators outside remind us all.