Is the radical, Trump-packed U.S. Supreme Court going to be satisfied it has owned the libs once it has done away with contraception, abortion, marriage equality, voting rights, and the federal government’s ability to regulate anything to protect citizens from guns to baby food to air and water? In a word, no. Their list of grievances against 20th-century progress isn’t going to stop with our private lives. Not when their twin bugbears of the New Deal and Great Society still stand. Not until they’ve completed the Great Regression. Elected officials haven’t been able to get it done, so the unelected Supreme Court will take on the job.
Since the Social Security Act was enacted into law on August 14, 1935, Republicans have tried to tear it down. The thought of all that money being safely stored away by the government to help secure dignified and sustainable retirements for regular working people has rankled the Republicans all these decades. Elected officials have tried and failed. Case in point: Former President George W. Bush entered his second term in office with a radical “reform” plan to privatize Social Security. “I earned capital in this campaign, political capital, and now I intend to spend it,” he declared after the 2004 election.
He really did try, and the people turned on him. “According to the Gallup organization, public disapproval of President Bush’s handling of Social Security rose by 16 points from 48 to 64% between his State of the Union address and June.” Democrats were united against his proposal and Republicans could see it was toxic, and used Bush’s post-Hurricane Katrina dive in public support to pull the plug. Even the Very Serious People involved in all those Very Serious commissions making all their Very Serious pronouncements about how Social Security has to be “reformed” because the deficit have not been able to convince elected Republicans to finally do it. Because elections would be hard to win afterward.
So it will be down to the unelected Supreme Court to do it, just as the Federalist Society—which built this court with the enthusiastic assistance of Mitch McConnell, George W. Bush, and Donald Trump—has intended all along.
Erica Suares, policy adviser to McConnell made that very clear with the confirmation of Neil Gorsuch to the seat McConnell stole from President Barack Obama and his nominee, Merrick Garland. Trump Supreme Court nominees could “fundamentally change the country,” she said. The goal was “shifting the culture” toward a limited federal government, adding “with these lifetime appointments we can really change the country in a short period of time.” Will Dunham, then policy director for Minority Leader Kevin McCarthy and a Heritage Foundation alum, said they were aiming beyond undoing Obama’s achievements at going “even further back—all the way back to the New Deal.”
The New Deal, and after it, LBJ’s Great Society, are definitely on the chopping block once civil rights have been done away with. It’s been the plan for decades, as described in 2018 by People for the American Way’s Peter Montgomery.
Throughout its history, a central focus of Federalist Society members has been developing and promoting a pre-New Deal understanding of federalism. A 1998 student conference focused on the structure of the Constitution, including “undoing the New Deal.” In 2001, the society sponsored a conference called “Rolling Back the New Deal.” It featured a presentation by law professor Richard Epstein called “The Mistakes of 1937”—a reference to the Supreme Court adopting a more expansive interpretation of the Commerce Clause. Epstein, an influential Federalist Society figure, has also promoted an extreme view of “takings” doctrine under the Fifth Amendment, which he admitted in a book on the topic would effectively invalidate most laws passed in the 20th Century.”
All of that built on the shaky foundations of “originalism,” now the prevailing constitutional theory of the Court. This “once […] fringe intellectual concept, confined to conservative legal circles,” has “achieved its ultimate ascendance,” writes Joshua Zeitz who will soon release Building the Great Society: Inside Lyndon Johnson’s White House.
“The theory, which views jurisprudence as frozen in time, flatly rejects the idea of the Constitution as a living and evolving document and instead demands that we interpret its provisions exactly as the framers intended,” he explains, even though the execution of that theory in supporting radical decisions is at best sloppy and at worst a complete misreading of actual history and prevailing thought at the founding.
“Curiously, in the space of 24 hours, the court’s majority moved the goal posts—1790s for guns, 1850s or so, for abortion—in determining what historical standard should inform the boundaries of constitutional exegesis,” Zeitz writes. They also reversed themselves on the idea of states’ rights in that 24 hours—the state has no authority whatsoever when it comes to guns, all the authority when it comes to abortion. At least until a Republican Congress passes a national ban on abortion. That they’d uphold.
This is a court that will have absolutely no compunction about declaring Social Security unconstitutional—and with it, Medicare and Medicaid and most of the safety net. The foundation on what passes for intellectual thought in the far right to do so has been built. All it’s going to take is the right set of challenges, which Trump-packed federal courts will happily provide.
Unless they are stopped.
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