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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