Is Social Security safe from the courts?

Much has been written about the threat Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, poses to the right of women to control our own bodies. It is obvious that the rush to confirm her in time to hear the Republican effort to strike down the Affordable Care Act poses a threat to everyone with preexisting conditions.

But is she also a threat to our Social Security? Acclaimed, nationally-recognized Constitutional law scholar, Harvard Law School Professor Laurence H. Tribe says yes, warning:

“Don’t underestimate how much a Court remade in Trump’s image could dismantle. Even Social Security could be on the chopping block.”

Similarly sounding the alarm is University of Florida chaired law professor and Harvard-trained Ph.D. economist Professor Neil H. Buchanan, who has written:

“[O]ne 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.”

Coming from such knowledgeable sources, those are warnings all of us should take seriously.

Because of Social Security’s overwhelming popularity among even self-described Tea Partiers, conservative politicians generally say that they love Social Security. But at candid moments, they make clear that they would like the courts to do what they have been seeking (so far unsuccessfully) to do sneakily, behind closed doors and by “starving the beast”: End Social Security.

Former Republican presidential candidate and former Trump Secretary of Energy Rick Perry has said and written that he believes Social Security is unconstitutional. Former Trump Chief of Staff Mick Mulvaney even voted, when serving in the South Carolina General Assembly, in favor of an amendment, which declared Social Security unconstitutional.

Former Rep. Ron Paul (R-Texas) has revealingly called the idea that Social Security is constitutional, “an extreme liberal viewpoint that has been mis-taught in our schools for so long and that’s what we have to reverse.”  When challenged that the Supreme Court has found Social Security constitutional, he is unmoved, arguing that “the Constitution and the courts said slavery was legal too, and we had to reverse that.”

Donald Trump and Senate Majority Leader Mitch McConnell (R-Ky.) have been systematically stacking the courts with young, extremist judges and justices for the last four years. The courts on which they likely will sit for decades have the power to end Social Security.

It is important to remember that when Social Security became law, most thought it would be struck down as unconstitutional. There was good reason for their concern. At the start of President Franklin Roosevelt’s first term, the Supreme Court, led by four conservative justices colloquially known as the “Four Horsemen of Reaction,” systematically struck down New Deal laws.

Just between January 1935 and May 1936 — less than a year and a half — the Supreme Court invalidated 11 pieces of New Deal legislation. This contrasted with the first 140 years of U.S. history, during which the Supreme Court invalidated an average of one federal statute every other year.

Sure enough, as soon as Social Security was signed into law and employers began to withhold and pay Social Security premiums, a shareholder of an affected company filed a lawsuit claiming Social Security was unconstitutional. Just as conservative ideologues today say that they want to shrink government to the size where it can be drowned in the bathtub, they wanted, in 1937, to kill Social Security in its infancy.

Out of concern for Social Security as well as other key legislation pending before the court, Roosevelt put forward his so-called court packing plan. Though the plan failed, the court held Social Security constitutional in what was coined “the switch in time that saved the nine.”

Today’s court is more conservative than any court since 1937. Soon-to-be Justice Barrett, who is just 48 years old, shares the same conservative views as the Four Horsemen of Reaction. If it were 1937 and Social Security were a new question in front of the Supreme Court, how would she have ruled? How would she rule if the issue were before her at some point in the future, once she has a lifetime appointment to the Supreme Court?

Revealingly, when Sen. Dianne Feinstein (D-Calif.) asked Barrett to comment on the constitutionality of Social Security and Medicare during her confirmation hearings, Barrett refused to answer.

If you do not want to take the chance that Donald Trump, alone or with the aid of a Republican Congress, will radically transform Social Security, you must take action.

If you do not want to take the chance of a radical Supreme Court overturning our health and economic security, taking away the ability of those with preexisting conditions to purchase health insurance and, even taking away our Social Security, you must also take action.

You must vote in the upcoming election for candidates who support expanding, not cutting Social Security. Indeed, given the possibility that a Supreme Court with a newly confirmed Justice Barrett doesn’t overturn the results of a free and fair election, you must do all you can to ensure that Trump, McConnell, and other opponents of Social Security, who have announced their plan to cut “entitlements,” are defeated in a landslide.

But that is only the first step. If the Democrats win the White House and Congress, everyone who cares about the future of Social Security must urge them to enact term limits for Supreme Court justices and to expand the Supreme Court.

Nancy Altman is president of Social Security Works.