The Federalist Society and Heritage Foundation are counting on Trump judges to roll back a century of federal action to protect Americans’ rights and well-being.
It may be hard for many Americans to imagine the country returning to a time before Social Security and Medicare, returning to a states’ rights-dominated view of the Constitution under which much of what the federal government does today to protect Americans’ health and well-being would be forbidden. But that’s the goal of a right-wing legal movement that, thanks to President Trump and Senate Republicans, is rapidly filling federal courts with so-called “originalist” judges who have been nurtured on that backward-looking ideology. They believe Trump’s nominees to the Supreme Court can “fundamentally change the country.”
“Originalism” is a judicial philosophy grounded in the belief that judges should interpret the language of the Constitution according to what they believe the document’s authors originally meant. Of course, original intent can be a matter of some dispute between conservative and moderate judges, but “originalism” is generally associated with the very conservative view of original intent espoused by justices like Antonin Scalia and Samuel Alito. If the right wing is successful at making originalism the dominant ideology on the Supreme Court and throughout the judiciary, the federal government won’t be able to protect the health and safety of workers, consumers and communities by passing laws that impose reasonable limits on the power of corporations.
The pre-New Deal era to which originalists cast a longing backward glance was one in which “freedom” meant the freedom of companies to force employees to work 80-hour weeks in unsafe conditions, to employ child labor, to sell unsafe food and medicine. It is the freedom of the strong to take advantage of the weak. This period is often referred to as the “Lochner era,” named after a 1905 decision in Lochner v. New York, where the Supreme Court declared unconstitutional a state law setting maximum working hours for bakers.
When presidential candidate Donald Trump turned over responsibility for picking his pool of potential Supreme Court nominees to the Federalist Society and Heritage Foundation, it was an extraordinary grant of power to organizations that have spent decades trying to remake our constitutional order into one in which the ability of the federal government to act on behalf of the common good is radically restricted by an originalist reading of the Constitution— especially the Tenth Amendment and Commerce, Spending, and General Welfare clauses.
Much attention has focused, rightly, on the very real and immediate threats that a new far-right Supreme Court justice like Brett Kavanaugh would pose to Americans’ access to health care, a woman’s ability to choose safe and legal abortion, and legal equality for LGBTQ people. But the right-wing project to remake the judiciary has ambitions beyond overturning Roe v. Wade and Obergefell and eliminating the Affordable Care Act. Many of them want to overturn the New Deal and reverse Progressive Era reforms that date back more than a century.
This view of the Constitution would take the federal government out of the business of Social Security, health care, education and more. Conservative columnist Andrew McCarthy expounded this take on the Constitution in National Review several years ago, saying that the Constitution gives Congress “no power” to create Social Security or programs dealing with education and health care. “Welfare programs can legitimately be created only by state and local governments,” he wrote. As he bluntly put it, “Let the states craft their own safety nets.”
Proponents of this vision of the Constitution—and this vision of America’s future—have Trump’s ear, and more importantly, they have his willingness to outsource the selection of lifetime federal judges to them.
The opportunity to create a judiciary dominated by the right’s pre-New Deal view of the Constitution explains why Senate Majority Leader Mitch McConnell has sought to impose a breakneck pace on the confirmation of Brett Kavanaugh to fill the vacancy created by the retirement of Supreme Court Justice Anthony Kennedy—and why McConnell has pushed his fellow Republican senators to confirm Trump’s appeals court nominees at a record pace.
The conservative legal movement sees this current window of total Republican control in Washington as a chance in a generation to shape the courts for generations to come. As People For the American Way Senior Fellow Elliot Mincberg noted in June, Trump administration judicial nominees are likely, after Trump leaves office, to stop any effort “to restore the New Deal safety net,” as well as protections from federal agencies.
Trump’s first Supreme Court pick, Neil Gorsuch, is already playing his part. Last year Gorsuch celebrated his confirmation at the Federalist Society’s convention, saying, “Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States.” Earlier this year, he joined the Court’s other conservatives in a case about workers’ rights to overtime pay. In the words of Justice Ruth Bader Ginsburg, that decision undermined “more than half a Century of our precedent” on a New Deal-era labor law.
And in June, Gorsuch joined the rest of the Court’s right-wing judges to overturn more than 40 years of precedent to advance the cherished right-wing goal of destroying the bargaining power and political strength of American unions. In the Janus case, the Court’s right wing turned “the First Amendment into a sword,” as Justice Elena Kagan wrote in her dissent—a sword “against workaday economic and regulatory policy.”
Gorsuch has even managed the remarkable feat of situating himself to the right of Clarence Thomas, who himself has been pushing the Court to adopt a pre-New Deal interpretation of the Constitution’s Commerce Clause—which empowers Congress to regulate commerce between the states, and between the U.S. and other nations.
In 2011, People For the American Way Foundation senior fellow Jamie Raskin—then a law professor and Maryland state senator and now a member of Congress—wrote that “a powerful case can be made that the most important constitutional instrument for social progress in our history has been the Commerce Clause”:
Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.
In his history of Commerce Clause jurisprudence, Raskin noted that the Supreme Court, during “a period of growing conservative political and judicial activism,” began in the 1990s to revive the project of using the Commerce Clause to constrict Congress’s power. Scholar Amanda Hollis-Brusky notes that Thomas has repeatedly urged his conservative colleagues to go even further to embrace what he calls the “original” understanding of the clause. In a 2017 speech at the American Enterprise Institute, Kavanaugh praised the late Chief Justice William Rehnquist—Kavanaugh’s “first judicial hero”—for “putting the brakes on the Commerce Clause.”
It is worth noting that the Supreme Court’s ruling upholding the constitutionality of the Affordable Care Act relied on Chief Justice John Roberts finding authority not in the Commerce Clause, but rather in Congress’s power to tax. The survival of the health-care law was the big news to the public, but even for conservatives who hated the outcome, there was good news about the Court’s trajectory: Roberts had joined the Court’s four other conservatives in finding that the law violated the Commerce Clause. Indeed, echoing conservative thinkers, a lawsuit by 20 states now argues that, with Republicans having repealed Obamacare’s individual mandate, Roberts’ tax position is no longer applicable and the entire ACA, including the mandate for insurers to cover pre-existing conditions, is unconstitutional.
While Roberts’ ruling upholding the ACA angered many conservatives, right-wing pundit Hugh Hewitt calls it “brilliant,” especially because of “its political consequences downstream” including “getting five votes for the Commerce Clause limit.” With another originalist like Kavanaugh replacing Anthony Kennedy, on the Court, Hewitt believes, Roberts will be free to move the court more aggressively to the right.
Gorsuch appears interested in implementing the corporate right’s desire to disempower and dismantle executive branch agencies—which right-wing advocates prefer to call the “administrative state” and argue that it violates the Constitution’s structural separation of powers—and perhaps return to the long-discredited Lochner era, when the Court overturned child labor laws and other economic regulation. Legal analyst Ian Millhiser says that Gorsuch’s opinions in two cases this year suggest that he is “eager to implement an anti-government agenda that would even make Justice Thomas cringe.” Current Supreme Court nominee Brett Kavanaugh is a strong proponent of weakening executive branch agencies and drastically curtailing or jettisoning the court’s Chevron doctrine, under which judges give deference to substantive decisions made by agency experts.
At the same time, Kavanaugh questions the constitutionality of independent agencies, suggesting that he would place them more directly under the control of the president, what Slate’s Jed Shugerman has called “an ahistorical and extreme theory of presidential power.”
Trump Judges as Opportunity to ‘Fundamentally Change the Country’
The sense of excitement about the impact of Trump’s judges was palpable at last year’s Road to Majority conference, an annual gathering sponsored by Ralph Reed’s Faith and Freedom Coalition and various allied conservative groups. High-level White House and congressional staffers were nearly giddy over the prospect of Trump naming hundreds of federal judges and multiple Supreme Court justices. One speaker said that over the course of eight years Trump might be able to name 45 percent of the country’s federal judges.
The seating of Neil Gorsuch on the Supreme Court is “something that is really going to change America,” White House aide Paul Teller told the Road to Majority audience. Another Supreme Court vacancy, Teller added, would let Trump create “epic, titanic shifts.” Erica Suares, policy adviser to Senate Majority Leader Mitch McConnell, agreed that additional Trump Supreme Court nominees could “fundamentally change the country.” With the nomination of Kavanaugh, Trump is seeking to do just that.
Noting that Democrats had passed major programs—including the New Deal and Great Society—when they had wide congressional majorities, Suares said, “we now have to undo so much.” Suares celebrated the large number of judicial vacancies that greeted Trump thanks to Senate Republicans’ slow-walk of Obama nominees during the last two years of his presidency. She said “shifting the culture” toward support for a more limited role for government is a major goal for Republicans. “[W]ith these lifetime appointments we can really change the country in a short period of time,” Suares added.
Will Dunham, policy director for Rep. Kevin McCarthy and a Heritage Foundation alum, agreed that the Obama administration had created “pent-up frustration” for conservative activists, not only for those eight years, but “even further back—all the way back to the New Deal.”
“We are, one piece at a time, incrementally, slowly but very surely, restoring freedom in America,” he said.
Who are These Judge and Justice Pickers? And What is their Agenda?
The Federalist Society
Since its 1982 founding by conservative law students, the Federalist Society’s influence has grown immeasurably. Supported by many of the same funders that built much of the conservative infrastructure over the past four decades, the group has grown into a network of tens of thousands of law professors, lawyers, politicians and judges. Before Leonard Leo, executive vice president of the Federalist Society, crafted a list of potential Supreme Court nominees for presidential candidate Donald Trump, the group had nurtured and promoted the ideology of Antonin Scalia, Clarence Thomas, Samuel Alito, and John Roberts.
Leo successfully steered Neil Gorsuch onto the Court, and recently took a leave from his Federalist Society position in order to act as a White House adviser, steering the nomination of Kavanaugh. If the Senate confirms Kavanaugh or any other justice off Trump’s list of Federalist Society-approved judges, the group will have helped pick a majority of the Supreme Court justices.
Eight years of the Obama administration may have slowed the advance of the group’s impact on the Court, but it only heightened its members’ determination. “Rome wasn’t burned in a day,” as some Federalist Society members are reportedly fond of saying.
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.”
In 2015, Oxford University published “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” by Amanda Hollis-Brusky. The book examines the enormous impact that the Federalist Society’s members and networks have had by providing the intellectual capital that the Supreme Court’s conservatives have used to justify such “revolutionary constitutional decisions” as Citizens United, which gutted campaign finance regulation in the name of protecting the First Amendment rights of corporations, and in pushing the Supreme Court to reverse more than a half-century of precedent and begin weakening the federal government’s ability to act based on the Commerce Clause.
The Heritage Foundation
The Federalist Society’s partner in promoting Trump’s candidacy by credentialing his commitment to a “conservative constitutionalist” judicial philosophy is the more overtly political Heritage Foundation, which has a massive presence in the conservative movement and on Capitol Hill. Heritage is a linchpin in the right-wing policy and political infrastructure. That network of think tanks and advocacy groups was created and funded by conservative foundations and corporate interests in response to a warning issued by Supreme Court Justice-to-be Lewis Powell in the early 1970s: Those he denounced as enemies of free enterprise, Powell told the business community, were building power in America’s educational and cultural institutions.
Heritage wants to dramatically restrict the authority of the federal government. A 2006 Heritage Foundation report on entitlement programs declared that the Civil War “broke the back” of the founding fathers’ compromises and thus of the Constitution itself. A 2012 Heritage report declared that “the restoration of limited constitutional government” is one of the greatest challenges facing the country. “Central to that objective, and an essential aspect of changing America’s course, is the dismantling of the administrative state that so threatens our self-governing republic,” the report said.
Heritage moved even more sharply to the right during the Obama administration and helped Trump build support among conservatives. It has been rewarded with tremendous influence in the administration, filling Cabinet positions and agency jobs with Heritage alumni and allies.
In 2016, just after Trump’s election, Heritage combined a few existing programs and launched a new Institute for Constitutional Government, which it described as “the conservative movement’s new command center for restoring the U.S. government as the Founders envisioned it.”
Among the points made by Heritage’s David Azerrad at the launch event was this: “Our federal government today operates largely outside of the structure of checks and balances the Founders originally designed.”
“Tenthers” in the Senate – and on the Court?
The keynote speaker for the launch of the Heritage Foundation’s new institute was Sen. Mike Lee, who was interviewed by President Trump as a potential replacement for Justice Kennedy. At the Heritage launch, Lee said that the “constitutional order” has been “subverted over the last eight decades” by a political class in Washington that is focused on “the perpetual expansion of the federal government.”
Former Heritage Foundation President Jim DeMint had urged Trump to appoint Lee to the Supreme Court. Also promoting Lee as Trump’s “best choice” for the Supreme Court was Lee’s friend and Senate colleague Ted Cruz.
Before he joined the Senate, Cruz was a senior fellow at the Tenth Amendment Center, dedicated to limiting the reach of the federal government. The Tenth Amendment reserves to the states any rights not granted by the U.S. Constitution, and is often used by so-called “Tenthers” as a rationale for eliminating federal programs and even federal jurisdiction over public lands.
In 2016, the Tenth Amendment Center published an article declaring that Obamacare was the “culmination, not the beginning, of unconstitutional nationalized medicine.” Regarding Social Security and programs like Medicare and Medicaid, the article asserted that “there is nothing in the Constitution that authorized the federal government to run any such program in the first place. This applies to every other federal health program as well.”
Lee has long been an advocate for an extreme view of the Tenth Amendment, one that regards much of what the federal government does today as unconstitutional because it was not explicitly enumerated in the text of the Constitution. People For the American Way noted in a 2010 report that Lee “has denounced as ‘domestic enemies’ those who disagree with his radically limited view” of the Constitution. Here are a few things that Sen. Mike Lee has said he believes are unconstitutional for the federal government to be engaged in:
- Social Security
- Child Labor Laws
- Food Safety
- Minimum Wage Laws
- Disaster Relief
- Food Stamps
- Violence Against Women Act
- Affordable Care Act
‘A War for the Future of the Republic’
It is impossible to overstate the impact on American society of this extreme, abundantly funded limited-government ideology that is on the verge of gaining domination in the federal judiciary, after decades of right-wing investments. That ideology has not only been promoted by large national organizations but also by dozens of state-level think tanks and smaller policy advocacy organizations.
But not only is providing health care for the poor, needy, aged, and infirm not a proper function of government, not only is making health care more affordable not a proper function of government, not only is providing a health-care safety net not a proper function of government, and not only is expanding access to health care not a proper function of government, there is nothing in the Constitution — which Republicans in Congress claim to revere and follow — that authorizes the federal government to have a Medicaid program.
But it’s not just the Medicaid program. Medicaid is just part of a much broader issue. It is not the proper role of government and it is not constitutional for the U.S. government to have anything to do with health care or health insurance. That means not only no Medicaid, but also no Medicare, SCHIP, Obamacare, National Institutes of Health, or Department of Health and Human Services. It also means no federal laws, mandates, regulations, guidelines, licensing, standards, oversight, or restrictions that have anything to do with health care or health insurance. And because no American has a right to the resources of another American, no matter how low his income or how badly he needs medical services, there should be no government funding of health care or government subsidies for health insurance.
Many conservative strategists know that openly talking about doing away with Social Security and Medicare would be disastrous politically, so they encourage discretion. But their long-term goal remains.
For example, Matthew Spalding, a Heritage fellow, argued in a 2011 interview that while Social Security “lacks constitutional grounds,” conservatives will have to move carefully when it comes to programs “that the American people have come to accept.”
Along those same lines, the Family Research Council’s Rob Schwarzwalder has said, “The terms of the Constitution define and limit the roles of the federal government, and do so definitively.” But he recognizes the political impracticality of a frontal assault on Social Security, saying that “modest” and “prudential” reforms might set the stage for bigger “improvement of the system” over time. Still, he says, “simply because people like something or are used to it cannot be a justification for its interminable continuance.” And, he adds, “We must never permanently accept as part of our public life things that inherently erode the national good.”
“We are in a war for the future of this republic,” declared Sen. David Perdue of Georgia at the 2017 Road to Majority conference. Perdue cited New Deal and Great Society programs as the consequences of periods in which Democrats had dominant political power. “The great progressive experiment of the last 100 years, with bigger and bigger government, has failed, period.”
Progressive advocates have sounded the alarm about the radical threat posed to the Constitution—and the very nature of American society—by this push to take a constitutional wrecking ball to the programs, institutions and protections on which the people have come to rely. The real long-term impact of the “originalist” judicial philosophy should be a major topic of conversation as the Senate considers the nomination of Brett Kavanaugh to the Supreme Court.