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The Right-Wing Legacy of Justice Lewis Powell and What It Means for the
Supreme Court Today
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Posted on Aug 14, 2016
By Bill Blum
President Richard Nixon presents a framed document to Lewis F. Powell Jr.
commissioning him as an associate justice of the Supreme Court during a
White House ceremony in 1971. (Henry Burroughs / AP)
Chances are if you were asked to name the most influential conservative
Supreme Court justice of the last 60 years, you'd nominate the late Antonin
Scalia. And you'd have any number of compelling reasons to do so.
Whether you liked him or loathed him, Scalia was a jurisprudential giant,
pioneer of the "originalist" theory of constitutional interpretation,
consistent backer of business interests, and the author of the 2008 landmark
majority decision in District of Columbia v.
Heller(https://www.law.cornell.edu/supct/html/07-290.ZO.html) , which
recognized an individual right to bear arms under the Second Amendment. His
death in February left a vacancy that has become a hot-button issue in the
runup to the November election.
But for all of Scalia's impact-and notwithstanding the political shivers and
convulsions his demise has sparked-I have another contender, or at least a
close runner-up, in mind: the late Lewis F. Powell Jr.
"Lewis F. Powell Jr.?" you might ask, with just a trace of skepticism.
"Wasn't he the one-time corporate lawyer whom New York Times columnist Linda
Greenhouse
eulogized(http://www.nytimes.com/1998/08/26/us/lewis-powell-crucial-centrist
-justice-dies-at-90.html?pagewanted=all ) in her 1998 obituary as a 'voice
of moderation and civility' during his 15-year tenure on the court?"
Yes, that guy. But while Powell has been widely commemorated by Greenhouse
and others as both a centrist, a lifelong Democrat and a judicial workhorse,
writing more than 500
opinions(http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=234
1&context=wlulr ) , his most significant contribution to American legal
history was made in secret, some five months before his January 1972
elevation to the bench, and it was anything but moderate.
On Aug. 23, 1971, Powell penned a confidential 6,400-word memorandum and
sent it off to his friend and Richmond, Va., neighbor, Eugene Sydnor Jr.,
then-chairman of the U.S. Chamber of Commerce education committee and head
of the now-defunct Southern Department Stores chain.
The
memo(http://www.thwink.org/sustain/articles/017_PowellMemo/PowellMemoReprodu
ction.pdf) , titled "Attack on American Free Enterprise System," was
breathtaking in its scope and ambition, and far more right-wing than
anything Scalia ever wrote. It was, as writer Steven Higgs noted in a 2012
article(http://www.counterpunch.org/2012/05/11/a-call-to-arms-for-class-war-
from-the-top-down/ ) published by CounterPunch, "A Call to Arms for Class
War: From the Top Down."
Back in 1971, when the memo was prepared, Powell was a well-connected
partner in the Richmond-based law firm of Hutton, Williams, Gay, Powell and
Gibson and sat on the boards of 11 major corporations, including the tobacco
giant Philip Morris. He also had served as chairman of the Richmond School
Board from 1952 to '61 and as president of the American Bar Association from
1964 to '65. In 1969, he declined a
nomination(http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/s
tories/powell082698.htm ) to the Supreme Court offered by President Nixon,
preferring to remain in legal practice, through which he reportedly had
amassed a personal fortune.
Powell and other business leaders of the era were convinced that American
capitalism was in the throes of an existential crisis. A liberal Congress
had forced Nixon to create the Environmental Protection Agency and the
Occupation and Health Administration. At the same time, consumers were
making headway against corporate abuse, both in the courts and
legislatively. And the anti-war and the black and brown civil rights
movements were all gathering steam and scaring the bejesus out of the
corporate oligarchy.
"No thoughtful person can question that the American economic system is
under broad attack," Powell began his analysis. "There always have been some
who opposed the American system, and preferred socialism or some form of
statism (communism or fascism)."
"But now what concerns us," he continued, "is quite new in the history of
America. We are not dealing with sporadic or isolated attacks from a
relatively few extremists or even from the minority socialist cadre. Rather,
the assault on the enterprise system is broadly based and consistently
pursued. It is gaining momentum and converts."
In particular, Powell identified college campuses as hotbeds of dangerous
zealotry, fueled by charismatic Marxist professors such as Herbert Marcuse
of the University of California, San Diego, along with inspiring New Left
lawyers like William Kunstler and Ralph Nader. Together, these "spokesmen"
(the male noun being used throughout) were succeeding not only in
"radicalizing thousands of the young," but in Powell's view also winning
over "respectable liberals and social reformers. It is the sum total of
their views and influence which could indeed fatally weaken or destroy the
system."
Sounding like an inverted caricature of Vladimir Lenin, who in his seminal
pamphlet(https://en.wikipedia.org/wiki/What_Is_to_Be_Done%3F) "What is to
be Done?" pondered how the Russian Bolsheviks might seize power, Powell
asked directly in the memo, "What specifically should be done?" to awaken
the business community from its torpor, spur it to counter the New Left and
reassert its political and legal hegemony.
The first step, he reasoned, was "for businessmen to confront this problem
[the threat to the system] as a primary responsibility of corporate
management." In addition, resources and unity would be required.
"Strength," Powell wrote, "lies in organization, in careful long-range
planning and implementation, in consistency of action over an indefinite
period of years, in the scale of financing available only through joint
effort, and the political power available only through united action and
national organizations."
Deepening his call to action, Powell urged the Chamber of Commerce and other
business entities to redouble their lobbying efforts and to "recruit"
lawyers of "the greatest skill" to represent business interests before the
Supreme Court, which under the stewardship of Chief Justice Earl Warren had
moved steadily leftward. Powell wrote: "Under our constitutional system .
the judiciary may be the most important instrument for social, economic and
political change."
Apparently stirred by the urgency of the hour, Powell accepted Nixon's
second invitation(http://www.presidency.ucsb.edu/ws/?pid=3196) to join the
Supreme Court, tendered in October 1971. He was confirmed by the full Senate
two months later by a vote of 89-1, with the sole "nay" ballot cast by
Democrat Fred Harris of Oklahoma, a maverick populist, who
asserted(http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/sto
ries/powell082698.htm) that Powell was an "elitist" who lacked compassion
for "little people." Powell took his seat the next January.
Powell's memo, although circulated and discussed within the Chamber and in
wider business consortia, never came to light during his confirmation
hearings, despite supposedly thorough vetting by the FBI. In fact, it came
to public notice only in September 1972, when it was leaked to syndicated
columnist Jack Anderson, who devoted two
pieces(https://vault.fbi.gov/lewis-f.-powell-jr/lewis-f.-powell-jr.-part-04-
of-1 ) that month to the memo, describing it as "a blueprint for an assault
by big business on its critics." Powell's views, Anderson argued, "were so
militant that [the memo] raises a question about his fitness to decide any
case involving business interests."
Anderson's warnings fell largely on deaf ears. During his Supreme Court
career (1972-1987)-a time when the panel was in transition from its liberal
Warren epoch to its conservative reorientation under the leadership of Chief
Justice William Rehnquist-Powell provided a reliable vote for corporate
causes.
He was especially instrumental in helping to orchestrate the court's
pro-corporate reconstruction of the First Amendment in the area of campaign
finance law, which culminated years later in the 2010 Citizens
United(https://www.supremecourt.gov/opinions/09pdf/08-205.pdf) decision. He
joined the court's seminal 1976 ruling in Buckley v.
Valeo(https://www.law.cornell.edu/supremecourt/text/424/1) , which equated
money, in the form of campaign expenditures, with political speech. And he
was the author of the 1978 majority opinion in First National Bank of Boston
v. Bellotti(http://caselaw.findlaw.com/us-supreme-court/435/765.html) ,
which held that corporations have a First Amendment right to support state
ballot initiatives.
But it is the secret memo that has proved to be Powell's most important and
lasting legacy. Although he was not the only corporate leader to sound the
counterrevolutionary alarm in the early '70s, his admonition for concerted
action bore fruit almost immediately with the formation in 1972 of the
Business Roundtable(https://en.wikipedia.org/wiki/Business_Roundtable) , the
highly influential lobbying organization that within five years expanded its
exclusive membership to include 113 of the top Fortune 200 corporations.
Combined, those companies accounted
for(http://billmoyers.com/content/the-powell-memo-a-call-to-arms-for-corpora
tions/2/#footnote2) nearly half the output of the American economy.
The Roundtable was followed by a succession of new political think tanks and
right-wing public interest law firms. These included the Heritage, Charles
Koch, Castle Rock, Scaife, Lynde and Harry Bradley, and Olin foundations,
among many others, as well as the Pacific Legal Foundation, the Cato
Institute, the Federalist Society and, above all, the Chamber of Commerce
National Litigation Center(http://www.chamberlitigation.com/ ;) .
Established in 1977, the Chamber's Litigation Center has grown into the most
formidable advocacy group regularly appearing before the Supreme Court.
According to the Center for Constitutional
Accountability(http://theusconstitution.org/corporate-court) , the Chamber
has notched a gaudy 69-percent winning record since John Roberts'
installation as chief justice in 2006. Together with its sister
organizations, the Chamber has helped make the Roberts Court the most
pro-business high
tribunal(http://www.minnesotalawreview.org/wp-content/uploads/2013/04/Epstei
nLanderPosner_MLR.pdf) since the 1930s.
Now, however, with Scalia departed and three sitting justices (Ruth Bader
Ginsburg, Anthony Kennedy and Stephen Breyer) at least 80 years old and
nearing inevitable retirement, the transformation of American law wrought by
the institutions that Powell envisioned more than five decades ago is
potentially at risk.
The next president-whether Hillary Clinton or Donald Trump-will have a
historic opportunity to remake the nation's most powerful legal body. And
while it may be safe to assume that any of the right-wing federal and state
judges Trump thus far has floated to replace Scalia and fill any other
vacancies(http://afjactioncampaign.org/wp-content/uploads/2016/05/AFJAC-Full
-Trump-SCOTUS-list-research-FINAL.pdf ) would only further Powell's designs
for a corporate court, it cannot be assumed that Clinton, with her
longstanding ties to Wall Street, would appoint progressives just because
she's a Democrat.
In all likelihood, if elected, Clinton would try to fill Scalia's spot with
President Obama's current Supreme Court
pick(http://www.politico.com/story/2016/08/hillary-clinton-merrick-garland-n
omination-226967) -District of Columbia Circuit Court Judge Merrick Garland.
Like Powell in his time, Garland is
considered(https://newrepublic.com/article/131680/merrick-garland-moderates-
choice-supreme-court ) by most legal observers to be a moderate, with a
reputation for
collegiality(http://www.npr.org/2016/03/16/126614141/merrick-garland-has-a-r
eputation-of-collegiality-record-of-republican-support) .
Now, I am not suggesting that Garland has a skeleton in his closet on the
order of Powell's secret memo, or that he wouldn't move the court
incrementally to the left if he were to succeed Scalia. What I am saying is
that neither he nor anyone else who might be tabbed by Clinton would merit a
free pass simply on the basis of party affiliation or status in legal
circles.
And that's precisely the point of revisiting the Powell memo and calling
attention to its meaning for the Supreme Court today. No matter who is
selected to sit on the Supreme Court or by whom, the public deserves a full
accounting of any nominee's views and affiliations, along with exacting
standards of accountability and transparency.
There should be no more nonsense like the blind spots that accompanied
Powell, or the ham-fisted inanity offered by John Roberts at his 2005 Senate
confirmation
hearing(http://www.cnn.com/2005/POLITICS/09/12/roberts.statement/) , in
which he compared justices to baseball umpires calling balls and strikes.
Nor should there be any more
refusals(http://www.cnn.com/2006/POLITICS/01/13/alito/) , a la Justice
Samuel Alito at his 2006 hearing, in which he declined to articulate his
actual positions on critical constitutional questions.
The time for such evasions and legalistic parsing is over. There's simply
too much at stake.
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