In the summer of 1971, a well-known, highly respected corporate lawyer in Richmond, Virginia, named Lewis F. Powell Jr. wrote to his friend, director of the U.S. Chamber of Commerce Eugene Sydnor Jr. Smarting from defeats in cases in the 1960s in which he defended tobacco interests and other corporate clients, Powell laid out in the August 23, 1971, memorandum a broad political agenda to advance the interests of laissez faire capitalism through orchestrated efforts to influence the media, academic institutions, government and society at large.
Two months later, Powell was nominated by President Richard Nixon to sit on the U.S. Supreme Court. Only after he had been confirmed did the memo now commonly referred to as “The Powell Memorandum” or “The Powell Manifesto” come to light.
In it, among a number of strategic objectives outlined, Powell advised, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”
What has followed over the next 40-plus years is the meticulous, steady effort to politicize the federal courts and appoint jurists biased toward industry and against government “interference” through regulation aimed at protecting consumers, workers and the environment.
What did the converts to Powell’s manifesto need in order to carry out that plan? Money, of course. The problem was that the Federal Election Campaign Act (FECA) of 1971, much fortified by amendment in 1974 in response to revelations of corruption during the 1972 presidential election, along with state campaign finance laws, stood in the way. It only took two years for the Supreme Court, now with Powell on the bench, to sledgehammer through the door of FECA safeguards allowing unlimited amounts of unregulated money to pour into elections with its 1976 decision, Buckley v. Valeo.
Two years later, in First National Bank of Boston v. Belotti, in an opinion written by Powell himself, the high court opened a crack in the political contribution door that had been closed to corporations for 71 years. Then, as we all know, in 2010, the Citizens United v. Federal Election Commission decision helped open the floodgates to virtual torrents of money, much of it from undisclosed donors, aimed at having all branches of government, including the judiciary, do their bidding.
The decades-long effort to implant “activist judges” has accelerated during the current administration. President Donald Trump bragged in taped interviews with journalist Bob Woodward for Woodward’s recently published book, “Rage,” how he has appointed almost twice as many federal judges as had President Barack Obama.
This effort to pack the federal courts is now front and center in the national news as President Trump and Senate Majority Leader Mitch McConnell ghoulishly act to take advantage of Justice Ruth Bader Ginsberg’s untimely death by replacing her only weeks before the 2020 election with a nominee who has a demonstrated pro-business, anti-civil rights and anti-womens’ rights record, and who opposes the Affordable Care Act. The shameless, blatant hypocrisy of this action stands in stark contract to McConnell’s and other Senate Republicans’ refusals in March of 2016 to even consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court on the false ideological principle that no such appointment should be made in an election year by any president.
During an interview on MSNBC’s The Rachel Maddow Show on September 21, 2020, U.S. Sen. Sheldon Whitehouse (D-R.I.), a member of the Senate Judiciary Committee, connected the dots for us. He explained, “(A) small group of very big donor interests powered up by Citizens United dark money … has now the power to pull strings and to drive behavior, and they’ve determined that they want to control the (Supreme) Court because the court … will do undemocratic things. A court with lifetime appointment … will do things that legislators would never vote for such as, for instance, unlimited money into politics from corporations. Nobody would vote for that. Control the court and they (sic) will deliver it. There is a pattern here and organization behind it, and if we don’t take that on, we are making a huge mistake.”
If President Trump’s nominee, Judge Amy Coney Barrett, is confirmed, this plot to use the courts to accomplish “undemocratic things” in favor of big business and against the will of the majority of the American people will have obtained its highest pinnacle of success. And it will have decades-long undemocratic effects upon our country.
What can we ordinary citizens do to combat this dire threat to the nation? We can use the power of the vote in this election to put both houses of Congress in the hands of representatives that don’t want to subvert our democracy, but rather will pass laws to protect it, curtail government corruption and, very importantly, de-politicize the judiciary.
John House is a Santa Fe County resident and president of RepresentUs New Mexico.