The Right-Wing Legacy of Justice Lewis Powell, and What It Means for the Supreme Court Today
The late Justice Antonin Scalia may loom large in recent SCOTUS history, but another conservative member of the top court was hugely influential in his own right.
President Richard Nixon presents a framed document to Supreme Court Justice Lewis Powell Jr. during a White House ceremony in 1971. (Henry Burroughs / AP)
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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 decision. He joined the court’s seminal 1976 ruling in Buckley v. Valeo, 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, 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, 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 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.
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, 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 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 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—District of Columbia Circuit Court Judge Merrick Garland. Like Powell in his time, Garland is considered by most legal observers to be a moderate, with a reputation for collegiality.
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, in which he compared justices to baseball umpires calling balls and strikes. Nor should there be any more refusals, 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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