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.
Powell wrote that “with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” He urged the Chamber to adopt the tactics of the ACLU, civil rights groups, public interest organizations and labor unions in convincing the Court to empower corporations. He advocated the development of a “highly competent staff of lawyers” to represent the interests of business as both party and friend of the Court. Two months after Powell wrote his blueprint for the corporate capture of the Court, President Richard Nixon nominated him to serve on it. He was confirmed before his memo surfaced.
In 1977, the Chamber fulfilled the recommendation of Powell’s memo by launching the National Chamber Litigation Center to represent the interests of business in the Supreme and lower courts. Today, the NCLC ranks second only to the US solicitor general in appearances before the Court. And its success rate before the Roberts Court rivals—and this past term has outstripped—that of the solicitor general.
In fact, the NCLC’s roster of wins before the 2010–11 Supreme Court term reads like a top ten list of the corporate world’s efforts to strangle working Americans and maximize profits. Its victories included thwarting class-action claims of gender discrimination at Walmart; forcing individuals to have their claims against big corporations settled in arbitration rather than gaining access to the courts; beating back litigation by states and municipalities seeking to regulate greenhouse gases; defeating claims for damages caused by the defective design of vaccines; limiting recovery by whistleblowers; restricting the reach of US law over foreign manufacturers of defective products; and blocking suits by private citizens against brokerage firms for making false statements about securities.
The Supreme Court traditionally agrees to hear fewer than 2 percent of the cases it receives for review. In the 2010–11 term, the NCLC urged the Court to review thirty cases, and the Court heard twenty-one of these—a stunning 70 percent success rate for the Chamber. In the most recent term, that percentage fell to a still remarkable 52 percent. And, strikingly, in the eight cases in which the Court reached the merits of the issue briefed by the NCLC, the NCLC won all eight. The solicitor general opposed the NCLC’s position in five of those cases and lost all five. The Court repeatedly chose corporate interests over those of the government.
The NCLC website features the following quote from leading Supreme Court advocate Carter Phillips: “Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.” Phillips may have to revise his statement to give the NCLC pre-eminence: since 2006, the NCLC has prevailed 68 percent of the time, according to the Constitutional Accountability Center. This percentage is far higher than in comparable periods of the Rehnquist Court (a 56 percent success rate) and the Burger Court (a 43 percent success rate).
The NCLC’s legal success rests on a carefully laid foundation that produced a Court with a pro-corporate tilt. The contributing factors include the rise of an ideologically driven conservative legal movement, the appointment of radically conservative judges to the bench and the emergence of a highly effective Supreme Court bar serving corporate interests.
Powell’s memo marks a convenient starting point for the conservative legal movement, but that movement was helped by political mobilization against progressive Court decisions on civil rights, crime and abortion. Southern outrage at the Warren Court’s desegregation rulings turned into a vicious rhetorical campaign against “activist judges,” which became the centerpiece of George Wallace’s 1968 presidential run and was incorporated into Richard Nixon’s “Southern strategy” that same year. By appealing to the fear and anger generated by judicial desegregation orders and the Warren Court’s long-overdue reforms of the criminal justice system, Wallace and Nixon launched attacks on federal courts that became a cornerstone of Republican success. These attacks intensified after the Court’s Roe v. Wade decision in 1973. They ensured a constituency in the Republican Party that cared intensely about appointing federal judges who would narrowly read the Constitution’s guarantees of equal protection, privacy and fairness to the accused.
Simultaneously during the 1970s, wealthy conservatives—many inspired by the Powell memo—poured money into right-wing public interest law firms in an effort to replicate the success of progressive public interest organizations. They also pumped money into the development of the “law and economics” movement, a business-friendly effort to evaluate and formulate legal rules based on their economic efficacy.
These separate strains of legal conservatism—the political and the economic—came together after the election of Ronald Reagan, who ran on a pro-corporate platform that echoed Republican attacks on the courts. Reagan installed Edwin Meese as his second attorney general and filled the Justice Department with young conservative lawyers, many of whom grew into conservative judges, such as John Roberts and Samuel Alito. Meese used the Justice Department as a think tank for the conservative legal movement. Its Office of Legal Policy produced ideologically driven work that emphasized a limited view of federal legislative and regulatory authority, revitalization of the takings clause as a defense against regulation, and rejuvenation of the contract clause, which had been used by the Supreme Court to invalidate labor laws in the first third of the twentieth century. The office also urged restrictive access to the courts and questioned the broad federal pre-emption of state law, which often worked against corporate interests.
Finally, the Meese Justice Department, knowing that it had a constituency clamoring for conservative judges, identified conservatives like Scalia and Kennedy for nomination to the Supreme Court, along with youthful Court of Appeals judges plucked from the Justice Department. Reliance on ideology as a dominant consideration in selecting judges represented the fulfillment of Lewis Powell’s vision. It demonstrated the fundamental understanding that the most direct way to change the law was to appoint reliable ideologues to enforce it.
While much of the original conservative political focus emphasized judicial restraint, as conservatives ascended on the Supreme Court, the activist strain promoted by Powell’s memo gained favor. Though many conservative politicians still deploy the rhetoric of opposition against “activist judges” who “legislate from the bench,” few legal conservatives today fault justices (such as the majority in Citizens United) for casting restraint aside when it serves corporate interests.
The final element pushing the Court toward protection of the 1 percent has been the emergence of a specialized Supreme Court bar that has brought disproportionate expertise in Court litigation to the service of corporate interests. Reagan’s first solicitor general, Rex Lee, left his position to start a successful Supreme Court practice with a major corporate firm. Since Lee’s pioneering leap, it has become common for firms specializing in corporate law to establish an exclusive Supreme Court team, often headed and staffed by alumni of the solicitor general’s office, who have formed useful relationships and acquired enormous expertise in their multiple appearances before the Court. They make it much more likely that the Court will agree to hear business cases and that the business side will prevail.
A recent study by Lee Epstein, William Landes and Judge Richard Posner—conservative scholars at Northwestern and the University of Chicago law schools—shows a significant increase in the number of business cases the Roberts Court has agreed to hear. That increase coincides with the findings of a study by Harvard Law School professor Richard Lazarus, which documented that by 2007, a majority of the successful requests to hear a case were filed by experienced Supreme Court practitioners.
The dramatic rise in the corporate success rate before the Roberts Court is the result of powerful forces unleashed and given focus by Powell’s memo as well as by Republican exploitation of the backlash against the Warren Court’s decisions favoring civil rights, criminal defendants and privacy. Recapture of the federal courts will require a commitment by progressives to fund the incubators of progressive ideas, support progressive advocacy and build a farm team for the bench. Most immediately, it will require a progressive movement that will mobilize against the Court’s 1 percent jurisprudence and push the president to select, and the Senate to confirm, judges who reject the Roberts Court’s plutocratic jurisprudence.
ALSO IN THIS FORUM
Bill Moyers and Bernard A. Weisberger: “The 1 Percent Court”
Jamie Raskin: “Citizens United and the Corporate Court”
Dahlia Lithwick: “One Nation by and for the Corporations”
Michael Greenberger: “The Roberts Court and Wall Street”
Craig Becker and Judith Scott: “Isolating America’s Workers”
Herman Schwartz: “Rewriting Antitrust Law”
Sherrilyn Ifill: “A Court Out of Touch”
Nan Aron: “The Way Forward”