How the Right Packed the Court

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 this strategy.

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