Public attention has recently been focused on this month’s midterm elections, where Democrats have seen results that were even better than reasonably could have been anticipated (and that could soon be better still). Out of the limelight, however, the Supreme Court—and, because Republicans held the Senate, increasingly the lower courts—can be expected to lurch even further to the right. What might that judicial agenda include?
Even though Republican politicians find it convenient to defend Social Security and Medicare when they are facing the voters, and even though the voters themselves in some very red states recently approved Medicaid expansions that their Republican politicians had rejected, the Republican Party’s longstanding revulsion to these so-called entitlement programs is as virulent as ever.
Will the courts—now dominated by hard-right movement conservatives—deliver knockout blows to one or more of those highly popular social programs? I hope not, but as I will argue below, one of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine—or even declare unconstitutional—one or more of Social Security, Medicare, and Medicaid.
How Bad Will Things Become Under the New Supreme Court?
Shortly after Justice Anthony Kennedy announced his retirement this past summer, I began this occasional series of columns asking just how much damage the Court will inflict after his departure. (I published Parts One, Three, Four, Five, and Six on Dorf on Law, and Part Two here on Verdict.)
I wrote the first of these columns before we knew who would replace Kennedy on the Court. Although Brett Kavanaugh’s elevation was especially unfortunate for a number of reasons, none of this series of columns would have been different no matter whom Donald Trump and the Republicans had anointed. Kavanaugh was a horrid choice, but on the substance of his legal views, he will be no different from any of the others who were on the short list of possible nominees. The current moment is about the judicial payoff for a political movement, not a singularly dishonest and entitled individual (now unfortunately a Supreme Court justice).
As my columns to date have demonstrated, there are two ways to approach the “How bad will things become?” question. The first is to ask how the Court will approach cases as a matter of decision-making. Will they be openly results-oriented, or will they continue to pretend to be guided by a judicial philosophy of one sort or the other? And will they trim their sails for political reasons?
Here, I am adding to my analysis of the second approach, which is to consider specific areas of the law that the Court’s newly enhanced arch-conservative bloc might seek to change. Will they eliminate or severely restrict reproductive rights? Of course they will, and not just abortion but perhaps even birth control. Will they invalidate environmental and labor laws? No doubt. Will they attack affirmative action programs, even in the private sector? Absolutely.
As I have pointed out (although I am certainly not the only one to notice), however, those high-salience issues are only the tip of the iceberg. The American conservative movement has long harbored an aching desire to bring back the infamous Lochner era, a line of cases named for a 1905 Supreme Court decision that essentially said that the “right of contract” means that governments cannot impose any restrictions on economic transactions. “Whatever the market will bear” becomes not just a shorthand for an economic theory. It rises to the status of holy writ enshrined in the Constitution.
This could potentially be used to invalidate entire areas of consumer protection law, along with financial regulations and restrictions on the use of property (such as zoning laws). It also could become an excuse to invalidate virtually anything that business and financial interests find inconvenient.
What About Social Security, Medicare, and Medicaid?
The Lochner era ended only when the Supreme Court justices who had misread the Constitution retired and were replaced by President Franklin Delano Roosevelt. Until then, Roosevelt’s first term had seen the Court again and again strike down legislation passed as part of the New Deal.
With an aggressive group of ideologically extreme conservatives dominating the Court once again today, are we about to see them go after the New Deal programs that still exist? Most prominently, will 1935’s Social Security Act come up for review?
As a related matter, will Medicare and Medicaid—the crown jewels of President Lyndon Johnson’s Great Society program, which was the logical extension of the New Deal—also be in the conservatives’ crosshairs?
As I noted above, the Republicans who have to run for office have had a split personality when it comes to these wildly popular programs. They accuse Democrats of trying to undermine the programs and promise to be their defenders. Even so, Republicans’ track record shows that they are extremely hostile to all three of these middle-class-friendly programs.
The major source of Republicans’ hostility arises from the conservative belief that governments are inherently inefficient, inept, and incapable of providing valuable services to the people. “Big government,” in the conservative catechism, is the enemy of economic efficiency, because supposedly only private businesses will respond to “market discipline.”
The success of all three New Deal/Great Society programs is thus a daily reminder that government actually can administer and fund essential services to the entire population. Conservatives respond by hyping any news about the costs of those programs, making easily refuted claims about solvency, and basically taking every opportunity to tell the public not to believe their own eyes in assessing Social Security, Medicare, and Medicaid. “Trust us,” conservatives say. “All of those programs are disasters.” But the people—even many in the Republicans’ most fervent base—know better.
Beyond the economic attacks, conservatives have also long attacked successful government programs as de facto socialism. Famously, Ronald Reagan delivered a stirring address in the early 1960s, claiming that we were witnessing the end of freedom itself, bringing tears to people’s eyes in imagining a conversation with that generation’s grandchildren in which the younger generation is told about how Americans were once free but had become enslaved to an overweening government.
What were liberals doing that brought such a passionate response from Reagan and the nascent conservative movement? Enacting Medicare! The right-wing response to a single-payer program that would provide health care to all of America’s elders was to portray it as a sneaky attempt to bring communism itself to the United States.
And that is by no means an attitude that was left behind in the twentieth century. In 2005, George W. Bush tried to begin a privatization process that would have fundamentally undermined Social Security (and, not at all coincidentally, enormously benefited Wall Street). Talk of “freedom to make your own retirement decisions” emanated from Republicans’ mouths, but they soon learned to their dismay that the public did not like to hear about their favorite program being privatized.
In this decade, Republican leaders (especially finally-departing House Speaker Paul Ryan) have proposed turning Medicare into a voucher program, which would have effectively repealed the system in everything but name. And the failed 2017 attempt to repeal the Affordable Care Act was in fact mostly an attempt to gut Medicaid, which would have taken health care away from roughly twenty million Americans. That effort failed by one vote in the Senate.
How Do the Courts Fit In?
All of this activity, however, has taken place in the political branches. Republicans in Congress and the White House have tried and repeatedly failed to slash or eliminate their white whales of Big Government. What role could the movement-dominated conservative Supreme Court play?
Thinking back on Republicans’ attacks on the Affordable Care Act (ACA), it is notable and somewhat ironic that the two big lawsuits that nearly succeeded in destroying the ACA both involved conservatives’ attempts to guarantee that a privately-run health care system would fail. The first big case, NFIB v. Sebelius, pressed the claim that people could not be penalized for refusing to buy private health insurance, even though private markets would fail if insurers were not able to count on having a large number of healthy (for the time being) customers.
Similarly, King v. Burwell was an attempt to undermine private markets by arguing that the ACA did not allow the federal government to stand in for the states in setting up private insurance exchanges. Indeed, even the infamous Hobby Lobby case was at its core an attack on the government’s ability to determine what must be provided by private insurers.
With that in mind, I noted back in 2014 (before King v. Burwell was decided, but while it was in the pipeline) that conservatives’ entire litigation strategy would have been irrelevant if President Obama and the Democrats in 2009 had adopted a national single-payer health system (such as Medicare for All). The federal government would not have had to penalize people for not buying health insurance, nor would it have had to set up private insurance exchanges, and private employers (like the Hobby Lobby stores) would have been simply irrelevant to the operation of the health care system.
I then added: “It is tempting, therefore, to think that an additional ‘cost’ of going for a half-measure like the ACA, rather than going for national single-payer in 2010, has been that we have been left to deal with these unnecessary nuisance suits. Medicare is hitting its 50th birthday, and it is not open to Constitutional challenge.”
Not being a naïf, however, I quickly noted that movement conservatives would not have folded up their tents and said, “Oh well, I guess there’s nothing we can do about single-payer. Medicare is bulletproof.” Instead, “[t]here is already a strong contingent of people, some of whom were put on the federal bench by George W. Bush, who want to revive the Lochner era’s expansive version of freedom of contract. Why would they not use expanded Medicare as the wedge to push that agenda?”
And that brings us to the new Supreme Court majority. It is not as if they would even need to invent new legal theories with which to invalidate Social Security, Medicare, or Medicaid. The 1937 Supreme Court decision in Helvering v. Davis held that the Social Security Act was a valid exercise of Congress’s power to legislate for the general welfare that did not violate the Tenth Amendment, a decision that prevented Social Security from being smothered in its crib.
Davis, however, was one of the leading cases that heralded the end of the Lochner era. Two dissenting old guard justices claimed that the Social Security Act was “repugnant to the Tenth Amendment.” Three more votes in that direction would have ended our publicly financed and managed retirement security system.
Are the necessary votes there today? The conservatives’ synonym for “universal” is “compulsory,” which means that the very universality of these popular programs by definition means that they represent creeping socialism.
Conservative economists and legal scholars overwhelmingly agree that private provision of essential services is not only efficient but are the only means to preserve liberty, and the current Supreme Court includes five justices who are extremely sympathetic to that view.
As I have argued elsewhere in this series of columns, there is no reason to think that the Court’s conservatives will be modest or shy in pursuing their agenda. Republican politicians have not succeeded in undermining the most important legacies of the New Deal and the Great Society, but Republican politicians in robes might yet have the last say.
