Dear Group,
In 1971 soon-to-be Supreme Court Justice Lewis Powell (nominated by Nixon) wrote “a confidential memorandum titled ‘Attack on the American Free Enterprise System,’ an anti-Communist, anti-Fascist, anti-New Deal blueprint for conservative business interests to retake America for the chamber [US Chamber of Commerce].” Lewis Stevens had served as a lawyer for Phillip Morris, “arguing tobacco companies’ First Amendment rights were being infringed when news organizations were not giving credence to the cancer denials of the industry. That was the point where Powell began to focus on the media as biased agents of socialism.” (from Wikipedia from which you can follow the footnotes) Part of Powell’s motivation in writing the Memo was his fear that Ralph Nader’s consumerist movement (Unsafe at Any Speed) would hamper American enterprise. If those ideas sound eerily familiar a half century later, they should. The Powell Memorandum is a foundational document.
Powell, incidentally, was approved by the Senate as an Supreme Court Justice almost a year before the Washington Post found and published his Memorandum.
At the time of Lewis Powell nomination to the Supreme Court, Supreme Court nominees were mostly centrists, so much so that it was actually unclear how they would rule in any particular case brought before the court. The major vetting prior to presentation to the U.S. Senate was done by the American Bar Association (ABA). Nixon (a Republican, of course), for example, made four appointments: Lewis Powell (who was pro-choice and pro-business), Harry Blackmun (the famous author of Roe v. Wade), Warren Burger, and William Rehnquist.
The Powell Memorandum spurred the non-profit think-tanks funded by prominent Republican/Libertarian monied interests so well chronicled by Jane Mayer in “Dark Money.” (See the Reference Section below.) Their sights were then set on the judicial branch, believing the judiciary insufficiently friendly to business. The Federalist Society was founded in 1982, backed by major donations from the Koch brothers, the Mercers, and the Scaifes. The avowed purpose of the Federalist Society is to nurture scholars, students, lawyers, judges and public opinion toward “a textualist or originalist interpretation of the U.S. Constitution.” That is shorthand for the business-friendly prescription of the Powell Memorandum. Every successful Supreme Court nominee by every Republican President since 1982 has been a member of the Federalist Society…except one…Anthony Kennedy, the swing-vote Justice who just retired, opening up seat into which the Republicans have gleefully filled with Brett Kavanaugh..
Here’s the list of nominees to the Supreme Court by Republicans since 1982. The two in parentheses are the only Republican nominees not part of the Federalist Society:
Antonin Scalia (1986-2016)
Robert Bork–rejected by the Senate 42-58 in 1987
(Douglas H. Ginsburg) withdrew on account of earlier use of cannabis 1987
(Anthony Kennedy) (1987-2018)
Clarence Thomas (1991- age 70
John Roberts (2005- age 63
Samuel Alito (2006- age 68
Neil Gorsuch (2017- age 51
Brett Kavanaugh (2018- age 53
The Senate process was contentious for Bork, Thomas, Gorsuch, and Kavanaugh in part because of the ideological vetting by and membership in the Federalist Society. For Republicans the Federalist Society approval has mostly replaced the vetting process of the American Bar Association that was the standard before 1980. Part of the reason the Federalist Society was founded to counter what the Republican think tanks had come to believe was a liberal bias on the part of the ABA and the majority in most law schools.
With Kavanaugh the Federalist Society goal is reached, a youthful 5-4 Supreme Court majority of Federalist Society members, a goal apparently worth outright theft of a seat from Merrick Garland and all the contention around Kavanaugh’s inadequately investigated past…and his blatantly partisan eruption during the last Senate Judiciary Committee hearing. (The two oldest current members of the Supreme Court are Ginsburg at 85 and Breyer at 80. The Federalist Society majority, barring some medical accident, depends on a pinch of luck and Clarence Thomas’ longevity.)
Much of the political excitement over Kavanaugh’s elevation surrounds abortion and gun rights, but never forget the real reason the Republicans pushed so hard has more to do with Republican power: rulings on gerrymandering, corporate personhood (Citizen’s United), possible adjudication of the handling of indictments against Trump…and all the corporate, “free enterprise” goals of the Powell Memorandum.
Now, with a definitively Republican/Libertarian/Federalist Society majority on the Supreme Court, it is more important than ever to regain control of the House or the Senate and as many parts of state governments as possible this November. (Note that regulations around a woman’s right to control her own body are likely to devolve to the several states.) If all three branches of the federal government are left in Trump’s tiny hands I fear for our country.
Come on out and knock on doors this weekend. The November election is looming. Your country needs your help.
Keep to the high ground,
Jerry