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.