Senator Sheldon Whitehouse (D-RI) argues that there exists a long-running and “behind-the-scenes manipulation of our political and justice systems to capture our courts—especially the Supreme Court—as a way to control the future of our democracy.”[1]
According to Senator Whitehouse, the manipulation began with a private memo written for the Education Committee of the U.S. Chamber of Commerce, in August 1971. The author was Lewis F. Powell, then a lawyer in private practice, but soon to become an Associate Justice of the Supreme Court of the United States (SCOTUS). Powell described American business and the free enterprise system as under heavy attack from a wide range of critics. Business, Powell urged, had to defend itself and the larger system in which it operated against these attacks.[2] Powell himself formed part of the majorities in two important decisions: Buckley v. Valeo (1976) and First National Bank of Boston v. Bellotti (1978). The first decision relieved organizations that were independent of any particular candidate from the campaign finance rules. The second decision granted corporations First Amendment speech rights. These decisions allowed individuals and companies could join the political debate as if they were ordinary voters.
It took a while, but by the late 1970s, people began to take Powell’s advice. William Simon, Sr. had served as Treasury Secretary under Nixon and Ford. “The experience of [Nixon’s] impeachment convinced him […] not that partisanship was necessarily poisonous, but that his opponents were far better at partisanship than his side was. […] Simon would spend the remainder of his life helping to redress the balance.” In 1978, Simon and Irving Kristol founded The Institute For Education Affairs (IfEA).[3] In 1979, IfEA funded the start of the Collegiate Network; in 1982, IfEA funded he initial conference of the Federalist Society.[4] The former supports conservative alternative voices to mainstream college newspapers. The latter seeks to develop a robust cadre of conservative lawyers and judges. The Federalist Society’s goal has been described as “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning.”[5] The Federalist Society has come to be seen as an enormously influential shaper of legal thought in the United States and as a gate-keeper for Republican appointees to the federal bureaucracy and judiciary.
The Federalist Society has been remarkably successful at placing its members in influential positions. Currently, Federalist Society members Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett serve as Associate Justices of the Supreme Court. To belabor the obvious, that’s five of nine. In the Citizens United decision (2010), the Supreme Court removed all restrictions on campaign spending for media by corporations, unions, and other associations.
This, then, is the “behind-the-scenes manipulation.” Actually, it’s been out in the open all along and it represents a legitimate political position. Fifty years on, it marks William Simon’s success in making Republicans better at partisanship than Democrats.
[1] Quoted in Leslie Lenkowsky, “Yet Another Conspiracy Theory,” WSJ, 6 December 2022.
[2] You can read the memo at The Memo (wlu.edu)
[3] On Simon, see William E. Simon – Wikipedia; on Kristol, see Irving Kristol – Wikipedia
[4] See: Collegiate Network – Wikipedia and Federalist Society – Wikipedia.
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