The Roberts Court’s embrace of business interests has not been equaled since the early 1930s, when conserva- tive justices—FDR’s “Nine Old Men”—sought to undermine the New Deal. This Court has consistently empowered moneyed interests at the expense of working Americans. This phenomenon is no accident; it is the result of years of dedicated effort by organized corporate interests.
As historian Kim Phillips-Fein writes in her book Invisible Hands,
many of the intellectual and institutional antecedents of the modern
pro-corporate movement lie in the organized opposition to the New Deal.
In assessing the corporate capture of the courts, however, a compelling
starting place is the memorandum written in 1971 by Lewis Powell for his
friend Eugene Sydnor, an official of the US Chamber of Commerce. At the
time, Powell was a corporate lawyer in Richmond, Virginia, representing
such interests as tobacco giant Philip Morris, on whose board of
directors he served.
Powell’s memo is a return to a time before conservatives had captured
our political and legal dialogue. He wrote almost hysterically that
“the American economic system is under broad attack” by “Communists, New
Leftists and other revolutionaries,” but also by “perfectly respectable
elements of society,” including “the college campus, the pulpit, the
media, the intellectual and literary journals, the arts and sciences,
and from politicians.” He singled out William Kunstler, Charles Reich,
Herbert Marcuse and, most prominently, Ralph Nader as the leading
villains. Powell described an apathetic and ineffective corporate
community that lacked the stomach and institutional capacity to fight
back. He prescribed a broad response that would be funded by large
corporations and coordinated by the Chamber of Commerce, big business’s
main Washington lobbyist. The Supreme Court would be the centerpiece of