Discover more from PREVAIL by Greg Olear
How the Court was Captured (with Sen. Sheldon Whitehouse)
SCOTUS went from Bedford Falls America to the United States of Pottersville.
Lewis Powell was the sort of soulless corporate attorney who pops up as the bad guy in political thrillers. He thought that Ralph Nader’s insistence that cars have seat-belts was the gateway to a Great Leap Forward into Communism. He believed corporations were people; heck, some of his best friends were corporations. As a lawyer, his principal client was the Tobacco Institute, the infamous cigarette lobby. He hated the New Deal, and the myriad ways it made life better for most Americans, because his heart was black as the tar from a pack of unfiltered Camels. Curiously, he is the second most popular Lewis Powell in Google search—right after the Lewis Powell who plotted with John Wilkes Booth to assassinate Abraham Lincoln.
Fifty years ago this August, at the behest of his friend and neighbor, a bigwig with the conservative U.S. Chamber of Commerce, Powell wrote a memo that was, among other things, the genesis of the rightwing takeover of the judicial branch of government. The Powell Memorandum became a blueprint for obscenely rich libertarians—most of them heirs to great family fortunes, not the original fortune-amassers—who invested their vast resources in charitable foundations, think tanks, and political organizations that would collectively transform Bedford Falls America into what we have today: the United States of Pottersville.
How did this happen? I asked Senator Sheldon Whitehouse, author of Captured: The Corporate Infiltration of American Democracy and this week’s guest on the PREVAIL podcast. “First of all, big industries learned about regulatory capture,” he told me. “If you’re a big industry and you’ve gotten in the habit of taking over—‘capturing,’ so called—regulatory agencies so that they do what you want instead of what the public wants, and then one day you look over at the Supreme Court and say, ‘Hey, why don’t we do that to the Court?’ Powell gave them a gameplan long ago, and they’ve steadily been building on this.”
Regulatory capture is, basically, the subversion of a regulatory body by the industry it’s supposed to be regulating. Just as Wall Street prefers its own people at the SEC, and Big Pharma would rather the FDA be run by pharmaceutical industry lobbyists, so the Kochs and Bradleys and Scaifes of the world want a Supreme Court composed of justices sympathetic to their dog-eat-dog, fuck-the-poor, let-the-planet-burn worldview.
And they don’t want any surprises.
Lewis Powell was nominated to the Supreme Court soon after writing his memo; on the bench, he was exactly as advertised. But a previous Richard Nixon nominee, Harry Blackmun, strayed from the Cult of Big Business as soon as he donned his black robe, and wound up one of the Court’s most liberal justices; most famously, he authored the majority opinion in Roe v. Wade. Later, Gerald Ford’s nominee, the bow-tied John Paul Stevens, turned out to be not just a liberal, but one of the longest-serving justices in history—a disaster for the right-wingers.
A GOP president nominating a liberal justice? This was not a mistake conservatives wanted to repeat. And by and large, they haven’t—by design. Indeed, the Federalist Society exists, in the main, to make sure that this jurisprudential apostasy never happens again. One of its primary functions is to vet potential Supreme Court nominees, weeding out potential Blackmuns and Stevenses and grooming more Powells. You might be the member of a creepy religious cult, or an angry drunk with Nats tickets and a yen for perjury, or a pompous Henry Kissinger fanboy—FEDSOC doesn’t care, as long as your life-was-better-in-the-good-old-days-before-the-40-hour-work-week-and-worker-safety-regulations ideology is pure.
Not that any of this is new. The Federalist Society, led by the enigmatical oenophile Leonard Leo, has had outsized influence over judicial nominees for decades. But during the Former Guy’s administration, FEDSOC leveled up.
“Bad went to worse when Trump came in and said, ‘I’m going to take all of my Supreme Court nominees from the Federalist Society,” Whitehouse explained. “First, there’s not a country in the world that hands off its judicial nomination process to a private organization. Trump did. And at the same time, the private organization was taking—guess what—huge, anonymous donations. . . Sure enough, the donors behind the operation controlled the turnstile, and they started feeding pre-approved judges through the turnstile, which is exactly how you would capture a regulatory agency.”
The result of these machinations is a Supreme Court where six of the nine justices are Federalist Society darlings. That makeup is not representative of the country as a whole, and the Court in general lists far to the right of the American mainstream. Like a captured regulatory agency, today’s SCOTUS doesn’t answer to We The People, but to the dark money forces that control the turnstile.
The blinking-red danger with a captured Court is that, while we attribute its capture to the “Koch Brothers” as a sort of metonym, we don’t really know who captured it. I mean, it’s called dark money for a reason. Donors don’t have to disclose their identities, not in any meaningful way. For all we know, the Federalist Society is funded by the Vnesheconombank, or the Saudi Arabian Public Investment Fund, or the Princely House of Thurn und Taxis. Are we sure Leonard Leo gets his financing from the Kochs, and not Semion Mogilevich? Regulatory capture of the Supreme Court seems like a mobster move; shouldn’t the onus be on Leo to show that he’s not bankrolled by the Bratva?
To hear Mitch McConnell talk on the subject, it’s the Democrats and their hare-brained court-packing scheme, and not his well-heeled overlords, that are the real threat to judicial independence. Just this week, he raged about the (bathetic) results of the Biden Presidential Commission on SCOTUS:
From the brazen amicus brief from a group of our [Dem] Senate colleagues warning the Court to ‘heal itself’ lest it be ‘restructured;’ to the bizarre verbal threats issued by the Democratic Leader on the steps of the Court, naming Justices who would ‘pay the price’ for failing to rule the way he wanted; to the pseudo-academic commission the President created to consider re-animating the ugly cadaver of court-packing that his party last tried 80 years ago. . . these are nonsense responses to a non-existent problem. The real problem is the shameful depths to which Democrats are apparently willing to stoop in pursuit of brute power. As I’ve said before, sensible people of all political stripes have an obligation to condemn this behavior.
Whitehouse was involved with the “amicus brief” that McConnell deliberately misquotes, so I asked what he thought of the Minority Leader’s remarks. “If you’ve got a captured agency, rule one is to make sure nobody thinks it’s captured,” Whitehouse told me. “Because once people are on to the fact that the agency’s captured, that kind of diminishes their return. If you’ve captured the Court, obviously you want to rise to the defense.”
To be fair, not all of the Supreme Court’s recent decisions have been garbage. Even Brett Kavanaugh has voted the right way now and again. But the overall picture is what the Kochs et. al want: cases break in favor of corporations, unlimited political donations, the opacity of donors, unchecked executive power, the rights of states to restrict voting rights. Will Roe be overturned? Will Biden’s decisive re-election in 2024 be subverted? Will the United States descend into oligarchy, if not outright autocracy? Alas, Whitehouse confirmed that I was not nuts to be concerned about these things.
Even so, there is no current plan to expand the Court, the Senator told me. Why? There’s not enough public support for the idea—if anything, the Republicans have appropriated the issue, vowing to “protect” the American people from “socialist court-packing.” Most people don’t understand the danger of a captured Court. Heck, most people don’t even realize that the Court’s been captured. Because it’s not obvious to the naked eye. Nine nerds in robes don’t look all that different now than they did a decade ago; certainly the wardrobe is the same.
In order to bring about meaningful change at SCOTUS, we—you, me, all of us—have to do a better job of making the case. And if we don’t? The rightwing takeover will be permanent.
Somewhere in the brimstone bowels of hell, Lewis Powell is smiling.
Greg Olear interviews Sen. Sheldon Whitehouse (D-RI) on a wide range of topics, including: dark money, anonymous donors, regulatory capture, the Federalist Society and Leonard Leo, Mitch McConnell’s motives, amicae curiae, Citizens United, climate change legislation (or lack thereof), the loss of John McCain, expanding the court, Brett Kavanaugh, and the FBI’s botched tip line. Plus: A new cryptocurrency.
Follow Senator Whitehouse:
Watch his speeches on “The Scheme:”
His article in the Yale Law Review:
His piece in Salon on dark money:
Photo credit: CSPAN screenshot. Senator Whitehouse questions Merrick Garland, October 27.