‘A supremely political court’
BRATTLEBORO — Thomas Jefferson called the United States Supreme Court the “despotic branch.” Historically the least democratic of the three branches, this tribunal — unelected to life terms with no codified ethical standards — has overwhelmingly served elite political and corporate interests over citizen rights.
What riled Jefferson most was Chief Justice John Marshall’s coup of 1803, which established judicial review, thus anointing the court with the ability to nullify acts of the legislative and executive branches as unconstitutional.
Marshall’s aggrandizement was powered by a fiction, as there was nothing in the Constitution that accorded the high court such sweeping powers. Alexander Hamilton and the Federalists did not object; the founders designed a quick consensus that the country would be best served by the elites of the Senate and the Supreme Court. There would be no need for popular elections for these white men of property and standing.
Thus a conservative court would protect slavery, abet the destruction of Native peoples’ societies, enshrine corporate prerogatives over citizens’ rights, institutionalize the Jim Crow systems, and acquiesce to imperial aggressions.
Since the 1980s, the Supreme Court has accelerated environmental degradation, reignited discrimination in voting rights, destroyed workers’ rights to unionize, strengthened corporate economic and political powers, and assaulted reproductive rights. Acclaimed political scientist Michael Parenti years ago called it a “supremely political” court.
The high court has inexorably marched to the extreme right. Now in 2023, with a 6–3 supermajority, this court is arguably the most reactionary in U.S. history.
While the court’s been a consistent bulwark protecting elite interests first and foremost, there have been notable exceptions. The court, under Chief Justice Earl Warren from 1954 to 1969, represented the high-water mark of judicial liberalism, defending civil rights, women’s rights, and defendants’ rights, as well as bolstering antitrust and corporate regulations.
The conservative transformation over the past decades is qualitatively different from past shifts in the balancing of the court — it is more than conservative presidents nominating conservative candidates.
Since the Nixon era of the 1970s, judges have been more ideological and political. It’s no longer party power brokers sitting around a kitchen table choosing candidates; rather, the vetting process has become a long-game strategy of grooming and promoting the right people.
How did this systemic change occur? What historical, corporate, political, and social forces coalesced to drive the court to the extreme right?
Class-serving ideologues choreographed this slow-motion judicial coup d’état, but this story begins with the evolution of the political economy of the post–World War II era.
The great backlash
Although the transformation began in earnest in the Nixon years in the 1970s, the groundwork was laid in the political turmoil of the previous decade. Citizens forced the country to reckon with its putative democratic promises; African Americans, women, and young idealists shook the conscience of the nation.
The good trouble fomented by activists in the civil rights, women’s liberation, peace, and other such movements galvanized a generation and scared the hell out of the establishment.
Throughout our history, when citizens organize and win significant democratic victories, a powerful backlash emerges to redeem ruling class interests, as took place with Black Reconstruction in the 1870s; the rise of organized labor in the 19th and 20th centuries; the Populist, farm–labor alliances; the Progressive and socialist movements; the New Deal and the post–World War II uprisings, among others.
In the aftermath of these victories, corporate and political elites vowed to restore their power in the name of stability and the so-called national interest.
Thus emerged the campaign by Republicans to regain a long-lost ascendency — and capturing the Supreme Court became instrumental to that strategy.
A cynical strategy
Born of the Barry Goldwater presidential campaign of 1964 and perfected by Richard Nixon in 1968, the master plan became known as the “Southern strategy.”
The goal was the expansion of the Republican Party base by appealing to historically conservative southern Democrats. Fair enough. However, the appeal would be based on fear, economic insecurity, and racist predilections of the white working class Southerner.
The strategy was to not appeal to optimism and vision to build a party — quite the opposite. The Southern strategy would expand the party’s reach via a vicious, sustained program to divide and further dehumanize by wielding the cudgels of white supremacy. Build a party, weaken potential working-class solidarity, and undermine the impressive gains made by the civil rights movement: a reactionary trifecta.
Nixon was the master of the strategy. His became the model for the campaigns spewed forth for decades to come. Reagan’s “welfare queens,” the Bush war on drugs, Willie Horton, immigrant invasions — the list goes on. The Southern strategy would be supercharged over the internet and social media ecosystems during the cult years of Trump.
The South became a Republican stronghold, and by the 1980s the long struggle had just begun.
Roe v. Wade
The extraordinary era of citizens’ democratic victories was punctuated in 1973 with the Supreme Court’s ruling in Roe v. Wade. For the first time, women had a federal right to reproductive liberty with limited access to an abortion.
Roe became the new lightning rod of right-wing animus over a country careening wildly to the left. The Supreme Court’s Brown v. Board of Education ruling of 1954 ending de jure segregation in public schools initially ignited the ire of the extreme right. Roe provided what Brown could not: a straightforward Manichean good-versus-evil world of morality played out with the innocence of a fetus.
Opposition to Brown, particularly outside the South, meant being opposed to equal educational opportunities for grade-school children. Denying an education to kids was an implicit repudiation of this country’s founding principles of equal opportunity, fairness, and democracy.
The putative moral issues of Roe had nothing to do with the abstract notions in the Declaration of Independence and the preamble to the Constitution. This was a personal issue, not a state one and, most importantly, it was a religious concern. Logic could not interrupt one’s religious beliefs; that ground was solid and immovable.
Now religion would serve a more explicit political purpose.
When an evangelical, Jerry Falwell, discovered television in the 1970s, a multimillion-dollar industry was born. The nexus of religion, politics, and capitalism would not be denied.
Prior to the Roe decision, Falwell, as a Baptist preacher, spent decades fighting Brown v. Board of Education by sponsoring private, white Christian schools. Now antiabortion forces would unite with white supremacists in the pulpits to tithe to the business of fundamentalism. By 1980, radical conservatives would draw no lines between religion, economics, and politics. Their drum major would be Ronald Reagan.
A new political cauldron would be cast, and into it would be abortion, homosexuality, free love, drugs, gay and interracial marriage, making a toxic brew that would nourish Republican “culture wars.”
This was just another variant of the recipe for the Southern strategy of division, fear, and hate.
It was injury enough to conservatives that Roe was ruled by a decisive vote of 7–2 in 1973. They found it downright insulting that years later, in 1992, three Republican appointees — Justice Sandra Day O’Connor, Justice David Souter, and Justice Anthony Kennedy — voted to uphold Roe in Casey v. Planned Parenthood.
The Powell roadmap
Seldom does history offer a clear blueprint, but in 1971 a corporate tobacco lawyer and soon-to-be Supreme Court jurist, Lewis Powell, accommodated.
In an extensive memorandum sponsored by the U.S. Chamber of Commerce, “Attack on American Free Enterprise System,” Powell issued a call to arms and a strategic plan for corporate America to reassert itself in the political economy. With liberalism on the rise, it was time long overdue for a counteroffensive.
Powell declaimed, “Strength lies in organization, in careful long-range planning and implementation [...] over an indefinite period of years [...].” The memorandum is quite breathless in tone; one can imagine Powell seeing himself as a latter-day Thomas Paine, exhorting corporations, conservatives, and the Republican Party to storm the liberal barricades erected by Franklin D. Roosevelt’s New Deal of the 1930s and Lyndon S. Johnson’s Great Society of the 1960s.
Powell fingered corporations and conservative elites most of all for reneging on the responsibility for defending and projecting the values and virtues of free enterprise and capitalism to the American people. After all, in the 1950s, the Advertising Council, in alliance with the U.S. Chamber of Commerce, unrolled an aggressive campaign called “People’s Capitalism,” designed to sell the American way of life during the throes of the Cold War. Powell called for more.
Powell called for building a corporate-funded army of benignly named political and economic foundations to reorder the political economy. Behind these activist groups, think tanks, and lobbying, educational, public relations, and funding organizations would emerge a comprehensive program to research and promote legislation, to educate the next generation of political and judicial leaders, and to lobby and reform the representative system through gerrymandering and voter suppression.
Critical to this scheme would be the reshaping of the judicial landscape. Heavy earth-moving equipment would be necessary.
In Powell’s words, “with an activist minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”
Pointing out the success of organizations like the American Civil Liberties Union in arguing cases before the court, the future justice pointed out: “This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.”
Much of the big money corporate world saluted and joined the ranks.
In 1971, 175 people were registered as business lobbyists; eight years later, 2,500 were. Today, thousands more haunt the hall of Congress.
Some of the fortunes of the elite flowed into the trough to rescue capitalism from the demonic clutches of government regulation.
New activist organizations appeared such as the Heritage Foundation, the Manhattan Institute, the CATO Institute, the American Legislative Exchange Council (ALEC), and the Federalist Society.
These groups are not like the mainstream Rockefeller, Ford, and Carnegie foundations, the Business Roundtable, or the American Enterprise Institute. As political writer Jane Mayer observed, “the conservative rich” — mostly under the radar of the public “created a new generation of hyper-political foundations [...] to invest in ideology like venture capitalists, leveraging their fortunes for maximum strategic impact.”
The Powell plan helped spawn ideologues willing to sacrifice democratic norms on the altars of laissez-faire deregulation. Remember Reagan’s “government is the problem” mantra or Republican political brain-trustee Grover Norquist’s “shrink the size of government to be able to drown it in the bathtub” or Steve Bannon’s goal under Trump was the “destruction of the administrative state.”
No, these were not your traditional Republican political and economic elites.
All Koched up
In 1974, billionaire libertarian activist Charles Koch genuflected to Powell’s exhortations that “business and the enterprise system are in trouble, and the hour is late.” In a speech, Koch urged corporate leaders to “undertake radical new efforts to overcome the prevalent anti capitalist mentality.”
Koch Industries, founded by patriarch, Fred Koch in 1940, became a multinational empire of oil, gas, paper, and chemical companies that now employs 122,000 in 60 countries. Fred’s politics were extreme; he co-founded the infamous reactionary John Birch Society in 1958.
When Charles and his brother David took over the family business, they inherited their father’s penchant for fringe politics, starting as libertarians. Over time the brothers would supercharge the company’s politics into a stealth juggernaut of the extreme right. Their rising political ambitions kept them safely behind the scenes.
Now it was the Reagan 1980s, and they were going to help him “make America great again”. (In his true fashion, Donald Trump would steal the Reagan campaign’s slogan in 2016.)
The Koch brothers and their machine would establish or subsidize more than 200 activist organizations to make America safe for capitalism. Over the years, Koch organizations have opposed national health care, weakened environmental protection laws, helped eviscerate government regulations of businesses, destroyed campaign finance laws, supported gerrymandering and voter suppression, sponsored legislation on the state and federal levels (via ALEC), helped Republican capture 30 state legislatures, and funded the remaking of the judicial system.
Operating in the shadows, most Americans have never heard of the Kochs. In the 2020 election cycle, Koch-related groups spent $1.1 billion to customize their political system.
“Just as Koch-funded operations weaponize and intensify racism to secure political power, they also exploit and escalate misogyny, homophobia, and transphobia by any means to boost Republican power,” wrote Nancy MacLean, a scholar and historian, and Lisa Graves, an investigative research watchdog group leader whose work focuses on the consequences of Koch political activities.
This is the Southern strategy writ large.
No more ‘squishes’
In 1961, retired President Dwight Eisenhower was asked what decision he regretted the most in his eight years. Without hesitation, he called his decision to nominate Earl Warren to the Supreme Court “the biggest damn fool thing I ever did.”
The conservative governor of California seemed a safe choice. Not so. As mentioned, for nearly two decades, Warren presided over the most liberal court in history.
That betrayal surfaced again years later when conservative presidents nominated putative conservative justices. Sandra Day O’Connor and Anthony Kennedy, Reagan nominees, and George W. Bush’s David Souter were by no means liberal, but they committed the sin of judicial moderation. In 1992 they all voted to uphold the principles in Roe with the Casey v. Planned Parenthood decision.
The lesson was learned; extreme-right ideologues would no longer countenance betrayals. There would be no more “squishes” — conservatives with moderate tendencies — elevated to the high court. In the legislative realm, such leaders were tagged as “RINOs”: Republicans in name only.
Meanwhile, Republicans’ memories of the Democrats’ contentious rejection of Robert Bork in 1987 to the bench compounded the pain of judicial betrayal. The ideological vice was tightening.
To ensure that there would be no more “squishes,” a more systematic, comprehensive approach to judicial nominees had to be advanced. This new strategy would need the cover of secrecy.
The Federalist Society and the cloak of darkness would come to the rescue.
The dark money shroud
One barrier to the extreme right’s master plan to capture the court would be the Federal Election Campaign Act of 1971. This law, weak though it was, set limits on campaign contributions and expenditures and imposed some disclosure requirements on funding sources.
These feeble regulations had to be scuttled.
Leverage was applied.
According to Sen. Sheldon Whitehouse, thanks to favorable court rulings and “unrelenting pressure on the Internal Revenue Service and the Federal Elections Commission,” millions in so-called “dark money” flowed into the long-term scheme to pack the court.
As defined by the watchdog group OpenSecrets, dark money is “spending meant to influence political outcomes where the source of the money is not disclosed.”
Through creative interpretation of IRS codes such as 501(c), which governs the tax exemptions and reporting requirements of nonprofit organizations, elite donors could find ways to legally avoid spending limits and disclosure requirements.
If a benefactor was designated as a “charitable” or a “social welfare” organization, the money was “nonpolitical” and therefore needed no regulation. New rules and pressures on the IRS during the Trump presidency further greased these machinations.
So how does one open the spigot for unlimited campaign contributions?
Starting in 1976, a newly evolving Supreme Court would oblige. In the Buckley v. Valeo case, with Lewis Powell on the bench, the court ruled that “money is speech” and merited First Amendment protections allowing the wealthy to finance their candidates with impunity. This watershed decision also struck down source disclosures.
In three subsequent cases — most notably, Citizens United v. Federal Election Commission in 2010 — the court injected steroids into Buckley by greatly expanding corporate munificence.
Chief Justice John Roberts did not see the potential for any quid pro quo corruption problems arising with unlimited corporate cash. In his vigorous dissent, Justice John Paul Stevens wrote “the framers had enshrined the right of free speech to individuals, not corporations.” This ruling is “a rejection of the common sense of the American people [...] who have fought against the distinctive corrupting potential of corporate electioneering.”
As predicted by everyone except the court majority, a tsunami of dark money flooded the political landscape.
In 2006 only 2% of campaign funds came from undisclosed sources; by 2020, 40% was dark. In that year, nine out of 10 of the largest spenders were for conservative candidates.
In 2012, Super PACs and independent donors spent $1 billion on campaigns, which was more than all independent expenditures combined from 1980 to 2010. Like a shroud concealing the dead, dark money can cover the dying of a democracy.
Now, with a superabundance of covert cash available, an activist network was needed.
The Federalist grooming stable
Flush with millions from the likes of the Olin, Koch, and Scaife families, in 1982 the Federalist Society embarked on a patient, stealth strategy to remake the judicial system.
According to scholar Steven M. Teles, “In no other area was the process of strategic investment [by right-wing organizations] as prolonged, ambitious, complicated, and successful as in the law.” The Federalist Society fostered a novel universe of judges, scholars, politicians, lawyers, and law schools to create an ideologically conscious court system on the state, federal, and supreme levels.
The formula was funding a sustainable system to recruit, train, groom, and install the right people. The Federalist Society would do the heavy work, guided by longtime judicial activist Leonard Leo, its vice president. Operating via his Judicial Crisis Network, Leo presided over a byzantine money-laundering spider web of two dozen shape-shifting front groups that dodged taxes and disclosure regulations.
This chimera operates in the unaccountable world below the radar of public or congressional scrutiny, though in one notable exception, Sen. Whitehouse has reported that from 2016 to 2018, Leo’s congregation spent $580 million to curate their judicial sock puppets.
Political writer Thom Hartmann said the Federalist Society’s intent is “to indoctrinate a new generation’s legal system with Powell’s mantra: Corporate personhood is real, money is speech, democracy is mob rule, and organized money should always have privilege over organized people.”
Accordingly, over time the Federalist Society web has grown to more than 70,000 practicing attorneys in 90 cities and more than 200 law school chapters. Scholar Amanda Hollis-Brusky observed that the organization “has evolved into the de facto gatekeeper for right of center lawyers aspiring to government jobs and federal judgeships under Republican presidents.”
Historically, judicial confirmation hearings are yawners. An elite consensus of Republicans and Democrats readily coalesce around the mainstream American Bar Association’s recommendation. Contention did arise in 1967 when Thurgood Marshall was nominated; he was the first African American candidate. Marshall prevailed. The last time the Senate issued a rejection was in 1930 during the Hoover administration.
Starting in the 1970s and accelerating in the years to come, these hearings became contested terrain. As ideologies crystalized, control of the Supreme Court became a more coveted political prize.
The issue of a candidate’s position on abortion created a “litmus test.” The veil of the nonpartisan jurist was lifting. When Trump announced that the Federalist Society would oversee his judicial agenda, the veil was removed altogether. It now appeared a nominee’s integrity, legal talents, character, or judicial temperament would no longer be salient characteristics of a good judge.
After a candidate matriculated through the Federalist Society grooming program, a public relations campaign would sell the nominee to the Senate, the mainstream media, and the public.
With Leo at the helm, a barrage of high-tech hucksterism would ensue, using network TV, cable, social media, ads, op-eds, and talking heads — propaganda at its most potent.
Sen. Whitehouse clarified the Federalist Society’s motives, noting that for the organization, spending $580 million to capture the judicial branch “was more cost effective than continuously throwing billions into two-year election cycles, particularly when the people you elect still won’t do all the things you want.”
This was money well invested; Justices Thomas, Alito, Scalia, Gorsuch, Kavanaugh, and Coney Barrett and Chief Justice Roberts — and, by 2020, 43 of Trump’s 51 federal judges — were Federalist Society grads.
The Faux News network
Throughout U.S. history, the economic and political elites have relied upon a less-than-objective mass media to represent their interests. The difference from one era to the next was mostly in degrees of magnitude and mendacity.
Starting in 1996, the Fox News Network formulated a new level of low: playing on emotions to manufacture dissent based on hate, fear, racism and xenophobia. It’s all eerily reminiscent of Goebbels of the 1930s.
Founded by international media mogul Rupert Murdoch and directed by Nixon attack-ad specialist Roger Ailes, Fox became an empire of unprecedented scope. Its cable television and radio and online social media tentacles claims to reach 200 million people in a month.
This influence was driven by neoliberal deregulation of the airways and the latest technology. During the Reagan and Clinton years, the public trust of the airways was deconstructed.
In 1949 the Federal Communication Commission (FCC) established the Fairness Doctrine to, among other things, protect a citizen’s right to unbiased news by requiring responsible opposing views. Under Reagan in 1987, the FCC abolished this longstanding doctrine.
Under Clinton in 1996, Section 230 of the Communications Decency Act let loose a feral virus called “social media” by stipulating that web platforms could not be held liable for content posted on their sites. This nihilism of unaccountability would turbocharge the Fox technique. Propaganda became news weaponized for an ultraconservative Republican Party.
New computer technologies enabled the microtargeting of messages to specific audiences via the power of algorithms. Fox was selling ideology.
According the former Fox contributor and news anchor for 14 years, Tobin Smith, “We now have [...] a completely separate country-within-a-country that is digitally interconnected by God, guns, megachurches, and political, cultural, and religious evangelists and Fox News televangelists spreading the good word of white nationalism.”
Religion and politics gathered at Fox, which then ordained the Republican Party as its church. Religious politics is a potent force. For many in the radical religious world logic, rational thought or facts are not required — only God’s word need suffice.
In true cultlike fashion, every Republican administration from Nixon on has effectively played on the insecurities of faith to advance their reactionary agendas, including choices for the Supreme Court.
All that remained for this grand machination to succeed was high-profile national leadership.
The Machiavellian Dr. No
Mitch McConnell has been the Republican Senate leader since 2007. He vowed to make Barack Obama a one-term president and has said he is “100% focused on stopping the Biden agenda.”
A shameless and adroit politician, McConnell leads the Republican judicial wars in Congress. When Trump took office in 2016, there were 107 judicial vacancies, thanks to McConnell’s strategy of preventing Obama from making appointments.
In a milestone that was Machiavellian even for McConnell, he infamously denied Obama’s Supreme Court nominee, Merrick Garland, a constitutional right to a Senate confirmation hearing.
Not since 1832, when President Andrew Jackson refused to comply with the high court’s ruling favoring the Cherokee Tribe, has another branch of government been so brazen.
“[Chief Justice] John Marshall has made his decision, now let him enforce it,” Jackson was said to have declared with impunity.
Prior to inauguration, McConnell met with his amanuensis, Donald Trump, to instruct the president-elect on judicial policies. Filling judgeships would be the preeminent priority.
“We are going to move judges like they are on a conveyor belt,” McConnell said.
That plan was to appoint young strict constructionists (read: right-wing ideologues). “We’re making generational change in our country that will be repeated over and over again through the years,” said McConnell, believing that, ultimately, the courts are more powerful than the Congress or the president.
By 2019, Trump had appointed more judges than Clinton, Bush, and Obama combined.
The captured court
The Republican corporate long game to control the Supreme Court has been a spectacular triumph.
For nearly two decades, the Roberts court has unabashedly protected elite economic and political prerogatives. Not since the Lochner era of the early 20th century has the Supreme Court amassed such a pro-capitalist, anti-regulatory, free-market record of rulings.
An analysis by Sen. Whitehouse’s staff revealed that this court has racked up an astonishing 80–0 business friendly record. Of these cases, 78 were decided by 5–4 vote margins. Clearly, ideology prevails here.
Historically, the courts are dissatisfied with close decisions, especially in cases that have national socio-economic implications. In the landmark Brown v. Board of Education ruling, Chief Justice Warren labored diligently to build a 9–0 consensus. Hell, even the infamous Plessy v. Ferguson case of 1896 — the one that legalized segregation for half a century — was decided 7-2.
This new breed of radical conservatives has no compunctions about consensus. Nor do they seem to have any reverence for stare decisis, the honoring of legal precedence.
Driven more by radical ideologies than judicial norms, these jurists show little concern for the societal impacts of their decisions. The 2022 Dobbs v. Jackson Women’s Health decision outlawing women’s reproductive rights comes to mind.
As social philosopher Eric Hoffer noted years ago about authoritarian thinking, such jurists are their own “true believers.”
As effective as Republicans were, they had critical help along the way as Democrats acquiesced and miscalculated. Clinton’s neoliberal “triangulation” strategy of moving Democrats to the center-right, eschewing the old New Deal and Great Society coalitions and running to Wall Street for financial sustenance, all emboldened and abetted Republicans.
Perhaps the most galling was the Clinton/Obama policy of preemptive compromise with a clearly intractable force. From their anemic policies on health care, worker’s rights, military spending, environmental protection, regulation, judicial nominees, and the like, Democratic vacillation yielded predictable outcomes.
The radical Republican agenda continues to imperil democracy as the 2023 Supreme Court docket includes hearings on the environment, religious discrimination, union rights, college affirmative action, and a state legislature’s power to overturn federal elections.
So all the essential mechanisms remain in place for Republicans. With even more extremists in Congress, — see the “Freedom Caucus” — and with a 6–3 solid majority on the Supreme Court, challenges to democracy abound. Putting party before country and ideology before democracy is their new norm.
The first two years of the Biden presidency offer glimmers of light and some grounds for cautious optimism.
In American politics nothing lasts forever — it just feels that way.