How Bad Will Things Become? Part Eight: The Supreme Court's Political Agenda and Republicans' Electoral Peril

by Neil H. Buchanan

The Supreme Court's two newest members have joined Clarence Thomas in forming an openly reactionary bloc of justices, and their colleagues Samuel Alito and John Roberts differ from them only by slight matters of degree.  Roberts, Alito, and Thomas are 63, 68, and 70, respectively, meaning that we can expect this current majority of hyper-conservative justices (which I have elsewhere dubbed the Unfab Five) to serve together for at least a decade, and possibly two.

They will also serve at the top of a judiciary that Republicans are gleefully packing with the most blatantly political (and sometimes simply unqualified) conservatives that the country has ever seen -- many of them also quite young and thus able to serve for decades.  This means that there is a possibility, even a likelihood, that the courts will stand in the way of progress even if Republicans are not able to stop Democrats from retaking power (although they seem poised to be able to do that, too, with a big assist from the judges that they are empowering).

One reason for a small amount optimism, however, is that those new lower court judges are in fact not likely to serve as long as life tenure would allow.  In the 1980s, Ronald Reagan and the conservative movement installed a passel of young judges, only to find that many of those guys were not willing to receive an upper-middle-class salary to do what turns out to be a lot of work.  Who knew that so many people who thought that Gordon Gecko's "Greed is good" speech was a religious exhortation would want to cash in their judicial experience for bigger paydays?

That might well happen in the lower courts again, with an exodus of judges beginning in only a few years, but there is no reason to think that any of the Unfab Five justices on the Supreme Court will leave early.  What will they do while they rule the roost?

In this "How Bad Will Things Become?" series of columns (see Parts One, Two, Three, Four, Five, and Six), I have moved back and forth between discussing the substance of the hard right judicial agenda and analyzing what one might roughly call the Unfab Five's style.  On the former (substance), the question is where the Court's majority will go on affirmative action, reproductive rights, and so on.  The latter question (style) addresses whether Roberts et al. will bother dressing up their conservative judicial activism or will simply become ever more naked about their ideological power plays.

Today on Verdict, I published Part Seven of this series, in which I speculate on another substantive matter, asking whether the reactionary majority's neo-Lochnerian agenda (which I had described in Part Four) might include a direct assault on the three big New Deal/Great Society social insurance programs: Social Security, Medicare, and Medicaid.

I point out in Part Seven that Social Security was challenged in court at its inception in the 1930's but survived only because the Lochner justices were mostly gone by then.  It would not be even a mild stretch for the Unfab Five to invent an excuse to invalidate those social insurance programs.  As Eric Segall has argued tirelessly here on Dorf on Law and elsewhere (most recently yesterday), conservatives' go-to theory -- originalism -- is not a theory at all, which makes it a perfect vehicle to justify anything that conservatives want to accomplish.

Here, I want to ask the related style question: Given that movement conservatives would love to invalidate all three of those programs (and more), will they actually try to do so, or will they stop short because of the consequences for their Republican comrades who actually want to win future elections?

There is overwhelming evidence that the most recent generation of Republicans are not merely extremely conservative but are radically reactionary.  That is, they do not want to preserve the status quo or make sure that change does not happen too quickly, which is what conservativism used to stand for.

These ideologues do not, for example, want to make Social Security work better.  They do not want the tax system to be simpler or tax enforcement to be fairer or less costly.  They want to destroy those things.  They are a wrecking crew, and Trump's rise has only made them more ravenous and less patient in their efforts to return us to the 19th century (or maybe the 18th century, or maybe even to go back to the pre-Enlightenment age).

On the other hand, Trump held his old, white voting base together by promising not to touch Social Security or Medicare.  It is true that Trump lies all the time and would have no problem breaking his campaign promises ("Drain the swamp!"), but the point here is that even the Republican base includes many people who hold the internally contradictory views that government is always bad but that the big middle-class social insurance programs should not be touched.

Would the Unfab Five take that into account when deciding whether to take a big swing at the legacies of FDR and LBJ?

This is not quite the same as asking whether the Chief Justice's much-hyped concern about the Court's "institutional legitimacy" (whatever that might mean to Roberts) will cause him to go slow on various matters.  That is mostly about remaining in good standing with the pundit class and the conservative legal academy, and it generally means that Roberts will be likely to couch his team's judicial activism in pseudo-intellectual terms and to pretend not to be overruling so-called settled law even as they gut long-established precedents.

The question here is how much the hyper-conservative Court majority will trim its sails, actually stopping short of where they would otherwise like to go in order to keep Republicans alive politically.  After all, all of the voter suppression in the world (which the Court would surely allow) might not be enough to prevent a political wipe-out for Republicans if their judges take away people's retirement security.

On the other hand, even the Republicans in political office could not stop themselves from moving forward with their latest effort to judicially invalidate the Affordable Care Act -- pressing forward even during an election year in which the protection of people with preexisting medical conditions was front and center in the Democrats' winning strategy.  If the Republicans who actually face voters have so little ability to stop themselves from indulging their reactionary fantasies, should we expect their hand-picked life-tenured jurists to be more restrained?

Perhaps the thought is that the Supreme Court can take the heat off Republicans by having Roberts or one of the others join a 5-4 opinion to save their political candidates from themselves.  See, e.g., NFIB v. Sebelius.  That way, Republicans and the conservative chattering class can have another good freakout about the perfidy of "so-called judges" and Roberts's betrayal, all the while avoiding the consequences of their own worst impulses.

But that actually involves losing when they could have won.  If, say, Roe v. Wade is on the chopping block but is not overruled, that is a loss for the conservative movement.  And having stolen the Supreme Court, they believe that they have the right to win, especially on the big things.

Another possibility is that the Court will go ahead and do its worst, giving the conservative movement what it wants in ruling after ruling, but Republican politicians will then try to run against their own judiciary, saying, "We can't do anything about this, because these guys have life tenure.  But we did not take away abortion rights or declare Medicare unconstitutional.  Those unelected judges did!"

Yes, that is obviously a hypocritical and transparently dishonest argument; but Republicans have shown again and again that they believe that voters will believe anything.  And sometimes they do, as demonstrated by Republicans' successful efforts to weaken the economy during the Obama years and then blame Democrats for the weak recovery.  In most cases, they did so without even having to take an on-the-record vote, allowing House and Senate leaders to throttle the economy simply by refusing to consider stimulative policies.

It would be similarly easy for Republican incumbents to say: "We might have voted for the judges who did these things that you hate, but we didn't do those things ourselves, right?"  And it is not at all clear that low-information voters will hold them responsible.

And because much of what the Unfab Five could do would be reversible only by amending the constitution, that would allow Republicans to seem to care about the public's revulsion while still using counter-majoritarian strategies to prevent the unpopular decisions from being negated.  So-called moderate Republicans could vote with the public's desires, but the outcome would be safe for conservatives.

Finally, if movement conservatives are thinking that they are inevitably going to lose their battle against demographics (and modernity), they might also be ready to decide to take everything that they can while they can still take it.

Having said all of that, however, I honestly do find it difficult to picture a Supreme Court ruling announcing that Social Security or Medicare is unconstitutional.  (Medicaid, which provides benefits to middle class people as well as poor people but is perceived as a "welfare program" for the poor, might be a juicier target for the Roberts team.)

Why is such a ruling so difficult to imagine?  In large part, I think that Republicans (including their justices) would fear truly massive protests.  Republican politicians now largely refuse even to hold town hall meetings, fearing that they will be yelled at.  A ruling invalidating a hugely popular program would be so politically incendiary that it might well feel too risky even for these guys.

That, in one very crude sense, would be democracy at work.  Even so, it is difficult to feel much comfort in the idea that the Supreme Court's reactionary majority will be bounded only by its assessment of how many people might flood into the streets in response to the Court's latest assault on the American public.