In 1971, a tobacco industry lawyer named Lewis Powell wrote a memo for the U.S. Chamber of Commerce.
Free enterprise and freedom itself, he warned, were under attack. Consumer advocates had recently forced new safety rules on cigarette and auto manufacturers, while civil rights activists were pressuring the government to address injustice and inequality.
To stem this tide, Powell recommended that business spend more money to influence Congress, the press, universities and, especially, the judiciary. The courts, he wrote, “may be the most important instrument for social, economic and political change.” A year later, Richard Nixon appointed him to the Supreme Court.
Thus began a major transformation of the U.S. judicial system. Over the next three decades, Republican presidents would make 13 appointments to the court, vs. four for Democrats. Many of those GOP justices were groomed by a pro-business law club called the Federalist Society, and they repaid the favor. Their votes gave corporations the right to influence politics, thwart regulations and generally make life harder for unions, consumers and minorities.
Powell’s injunction is about to notch a new success: the likely nomination to the Supreme Court of Amy Coney Barrett. That would give conservatives an unbeatable 6-3 majority on the court, with potentially dramatic consequences. Barrett will no doubt vote to curb abortion, end “Obamacare,” give Donald Trump another term and advance the cause of commerce.
She’ll do so as an avowed fan of the Federalist Society’s favorite theory: originalism. That’s a fancy word for saying the Constitution is set in cement and shouldn’t be used for such tawdry tasks as, say, righting wrongs or helping the less fortunate. Originalism is popular with business interests and lobbying groups, like the zillionaire Koch brothers’ dark-money Americans for Prosperity, and these have been pushing hard for Barrett’s confirmation.
Their goal is not just to control the court, not just to give themselves more tax breaks and gentler regulations, but also to save the Republican Party from oblivion.
The GOP has long been the tribune of business, but over the years it has come to depend on the votes of rural white conservatives to stay in office. Inconveniently, Americans are becoming more urban, nonwhite and unconservative. These more progressive and, crucially, more fecund citizens don’t like a number of Republican policies — on guns, race, abortion, health care, corporate tax cuts, immigration, climate change.
Republicans are reluctant to moderate those policies, fearful of losing their “base” and their big donors. (Also, to be fair, of abandoning issues they consider matters of principle.) And so, to survive the coming demographic wave, they’re relying on other tools: voter suppression, gerrymandering, the rural bias of the Electoral College. Also, of course, on the judiciary.
After a Republican-controlled Senate blocked most of President Barack Obama’s appointees, the Trump administration named one-quarter of all federal judges, including more to appeals courts than any first-term president in modern history. Nearly all of the Trump choices are certified conservatives, and many have ties to the Federalist Society. The administration has also ended the longtime practice of respecting the American Bar Association’s ratings of candidates based on merit. Nowadays, the main test is ideology.
This is no accident. If Republicans can pack the federal courts with enough friendly judges, they can block almost any attempt to curb their power and to inconvenience their business benefactors. That goal animated their 2015 decision to deny a hearing to Merrick Garland, Obama’s candidate for an open seat on the Supreme Court, on the grounds that the 2016 presidential election was, at eight months away, too near.
The hasty Barrett nomination, mere weeks before the election, has prompted some Democrats to suggest that a President Joe Biden enlarge the court to restore its ideological balance. (Prudently, he’s dodging the question for now.) That end can be accomplished by a simple act of Congress, which the Democrats may well control come Jan. 3.
And why not? The court’s size has already been changed four times, and some Republicans in 2016 called for it to be truncated to prevent a potential Hillary Clinton presidency from making any appointments.
Polls have long shown that most Americans don’t like the idea of fiddling with the Supreme Court. But, they also, by large margins, think a new justice should not be chosen this close to an election.
Republicans don’t care. They know they lost the popular vote in 2016 and again in the 2018 midterms, and may never win it again. Their gaze has shifted: get firm control of the judiciary.
That will allow them to use the courts to overturn elections, settled law and accepted norms. Also to continue afflicting the afflicted and comforting the comfortable, who will show appreciation through campaign largesse to the GOP. Republicans can then rule unimpeded — forever.
Lewis Powell, who died in 1998, after a distinguished Supreme Court career marked by occasional dissent from his fellow conservatives but reliable support for the interests of wealth and power, would be pleased.