Brett Kavanaugh, Social Security privatizer
Much of the debate over Judge Brett Kavanaugh’s nomination to the Supreme Court has understandably focused on the threat he poses to health care and reproductive rights. But there’s another element of party-line conservative ideology hiding in Kavanaugh’s record that has garnered less attention: his apparent enthusiasm for privatizing Social Security and other parts of our social safety net.
Transforming Social Security from a dependable retirement benefit into a risky personal investment account was a major conservative policy aspiration in the early 2000s. This also happens to be the exact period when Kavanaugh was working in the Bush administration. When Kavanaugh was serving as President George W. Bush’s staff secretary in 2005, the White House unveiled a plan to partially privatize Social Security. This proposal arrived like a lead balloon, and was ultimately abandoned amid widespread public resistance.
We do not — and may never — know what role Kavanaugh played in the administration’s Social Security scheme. Senate Republican leaders have barreled ahead to schedule his Supreme Court confirmation hearing while refusing to honor a bipartisan request to see his White House staff secretary records first.
But we do have Kavanaugh’s judicial records, and those hint that he carries on the right-wing dream of turning over Americans’ retirement benefits to Wall Street. In 2011, Kavanaugh was on a panel of judges that heard a challenge to the constitutionality of the Affordable Care Act. At oral argument, Kavanaugh asked multiple questions about the case’s implications for a hypothetical future Social Security privatization plan — an unusual degree of attention to give to a policy that (a) was wholly unrelated to the case at hand, and (b) doesn’t even exist.
In the end, the court upheld the constitutionality of the ACA. But Kavanaugh dissented. And he used his dissenting opinion in part to shape a right-wing silver lining to the court’s decision, arguing that if the ACA was constitutional, then Social Security privatization would be, too. “The majority opinion’s holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional,” Kavanaugh argued.
Indeed, Kavanaugh seemed to prefer privatizing social services of all kinds. He expressed hope that the government would follow a “blueprint . . . to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now.”
Kavanaugh’s partiality for turning public benefits over to private business coheres with his down-the-line conservative worldview toward economic regulation. In another case, Kavanaugh would have overturned a government fine levied against SeaWorld for violating workplace safety standards after one of its whales drowned a trainer. To Kavanaugh, this was just the nanny state “paternalistically” interjecting to make sure that workers in high-risk jobs are “protected from themselves.”
And if confirmed, Kavanaugh would join the Supreme Court’s current conservatives in “weaponizing the First Amendment,” as Justice Elena Kagan memorably put it this term. Increasingly, the Court’s conservative wing has transformed the First Amendment from a freedom protecting individual speech into a potent tool for corporations to attack government regulation. So too has Kavanaugh. Last year, he voted to strike down the Obama administration’s Net Neutrality regulations (which have since been repealed by the Trump administration), arguing that they violated the free speech rights of big Internet service providers like Comcast and Verizon.
It’s unlikely Kavanaugh will get an opportunity to undermine Social Security as we know it from the bench. But his sympathy for that policy goal is telling. Stripped of judicial varnish, Kavanaugh is a run-of-the-mill entitlement-cutting, pro-business, anti-regulation Heritage Foundation conservative. He is Paul Ryan in robes. There’s even data to prove it: a quantitative analysis by the think tank Data for Progress found that Kavanaugh and Ryan share nearly identical ideological views.
Ryan is on his way out of Congress, seeing the writing on the wall for his brand of plutocratic politics in an era of ascendant populism on both the right and the left. But if Kavanaugh is confirmed by the Senate, those same politics will linger on the Supreme Court for decades, even as they are rejected by more and more of a changing American electorate.
If progressives win back political power in the coming years, it could be just a matter of time before they come into conflict with a Supreme Court entrenched with conservatives. The progressive movement has embraced increasingly ambitious ideas for new government programs, abandoning the public-private partnership “blueprint” that Kavanaugh foresaw in 2011. That sets up a collision course with the vestiges of the anti-government conservative movement hanging on to the Supreme Court. And then what?