In thinking about the potential success of the social movement that led to the current ACA litigation, I have wondered a bit about other progressive social movements that were successful.
Well there was the woman’s rights movement that almost led to the Equal Rights Amendment–this set the stage for a number of gender equality cases in the 1970s (Frontiero and Craig v. Boren), as well as (of course) Roe.
There is also the gay rights movement that took the Court from Bowers to Romer to Lawrence (and soon to whatever SSM or DOMA case comes before the Court).
I would also lump in the anti-war protests following the invasions of Afghanistan and Iraq that led the Court on a path from Hamdi to Rasul to Hamdan to Boumediene (and the D.C. Circuit took it from there).
I could also include the civil rights litigation led by the NAACPLDF that culminated in Brown v. Board of Education.
In all cases, the challengers faced adverse legal precedents, but they crafted legal arguments that were backed by sizable popular movements.
All the litigations were done in stages. You could not get to Lawrence without Romer. You could not get to Boumediene without the gradual chipping away at the Executive’s Power from Hamdi to Hamdan.
In future works I will compare these movements (in some more detail) to the ACA movement.