In August 1971, Lewis F. Powell, Jr., sent a memo to the U.S. Chamber of Commerce. This memo, later known simply as the Powell Memo, outlined a proposed response to what he considered a broad attack on the American economic system. Powell noted that up to that time the Supreme Court had been used as a leverage point by liberal groups. He specifically called out the ACLU (American Civil Liberties Union), and suggested the Chamber act as the “spokesman for American business”. He suggested it participate in selected cases where it could have leverage.
Lewis Powell was nominated to the Supreme Court by President Richard Nixon, where he served as an Associate Justice from 1971 to 1987. His memo did not specifically suggest conservatives put judges and justices into the courts, but as the engine of right-wing power cranked up over the last five decades, the Republican Party has increasingly used court appointments to get conservative judgments, to the point where appointing judges and justices is now a fund-raising claim by the party.
This is the first of a series of four articles that discuss the impact on the U.S. Supreme Court made by this conservative objective, and how to remedy the problem it created. As the main political parties have sorted into ideological corners, with Republicans taking the extreme right corner and the Democrats loosely assembling in the left corner, it is not surprising they would take up strategies to pick jurists likely to represent their ideologies once on the Court. But the Republican Party has gone to such extremes to game the system, and has been so successful at it, that it has destroyed the legitimacy of the Court. The Court no longer represents the wishes or the needs of the public as a whole. As a result, the SCOTUS must be fixed.
The next three articles in this series discuss this problem, the solution, and how to effect the solution. They are scheduled at 4:00 PM Pacific Time on:
Friday: Republicans Packed the Supreme Court and We Must Unpack It
Saturday: Applying Leverage To Unpack the Supreme Court
Sunday: Beyond Leverage To Unpack the Supreme Court
With the inauguration, the impeachment trial, and the major issues faced by the Biden Administration (COVID, etc., etc.), I would have preferred to postpone this discussion until later. However, to the degree President Biden allows the Court to remain as it is without addressing the problem, he allows precedent to set in. It then becomes harder each day to address the issue. He needs to act next week. Any further delay may make it impossible to fix the problem without drastic changes, like increasing the number of justices on the Court.
The current Court is not legitimate. The means by which recent justices have been appointed does not reflect the will of the people. These choices were only possible because Republicans abused their power over the Senate to force through appointments that don’t reflect the majority views of the public. Those changes must be reverted now, before the public forgets how unusual and detrimental they are.
So, yes, there are many other matters crying out for our attention. But we must address this issue with the Court. I will never forget what the Republicans have done to the Court, and I will never forgive what the Republicans have done to the Court. I will not be part of any reconciliation with the Republicans until the Court is fixed. If anyone wants to heal the nation’s wounds and get us all back together, he will need to find a way to restore legitimacy to the Supreme Court.
And that’s not sufficient. The Republican Party needs to reform. The Republican Party is not a legitimate political party. It does not have the good of the country at heart. It needs to take positions on issues, like climate change, healthcare, lawful policing, tax policy, and other issues, in line with the needs of the American people. SCOTUS reform is just one necessary area before we should consider working with Republicans.