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lewis powell
Trump's Far-Right Army Is Threatening Bloodshed. Believe Them.
We must not only resist, but prevail. If we do not, it will be nearly impossible to reverse the course that America’s right-wing billionaires have set us on.
Jul 05, 2024
Kevin Roberts, who heads the Heritage Foundation (largely responsible for Project 2025) just implicitly threatened Americans that if we don’t allow him and his hard-right movement to complete their transformation of America from a democratic republic into an authoritarian state, there will be blood in the streets.
“We’re in the process of taking this country back,” he told a TV audience, adding:
“The reason that they are apoplectic right now, the reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning. And so I come full circle on this response and just want to encourage you with some substance that we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”
He’s not wrong. America has been changed as a result of a series of corrupt rulings by Republicans (exclusively; not one of these rulings has been joined by a Democratic appointee) which have changed America’s legal and political systems themselves.
As Roberts notes, this is really the largest issue we all face, and our mainstream media are totally failing to either recognize or clearly articulate how radically different our country is now, how far the Republicans on the Court have dragged us away from both our Founder’s vision and the norms and standards of a functioning, modern democratic republic.
These actions — corporate personhood, money as speech, ending the Chevron deference to regulatory agencies, and giving the president life-and-death powers that historically have only been held by kings, shahs, mullahs, dictators, and popes — have fundamentally altered the nature of our nation.
First, in a series of decisions — the first written by that notorious corporatist Lewis Powell (of “Powell Memo” fame) — Republicans on the Court have functionally legalized bribery of politicians and judges by both the morbidly rich and massive corporations.
This started with Powell’s 1978 Bellotti opinion, which opened the door (already cracked a bit) to the idea that corporations are not only “persons” under the Constitution, but, more radically, are entitled to the human rights the Framers wrote into the Bill of Rights (the first ten amendments).
Using that rationale, Powell asserted that corporations, like rich people (from the Buckley decision that preceded Belotti by two years), are entitled to the First Amendment right of free speech. But he took it a radical step farther, ruling that because corporations don’t have mouths they can use to speak with, their use of money to spend supporting politicians or carpet-bombing advertising for a candidate or issue is free speech that can’t be tightly regulated.
Citizens United, another all-Republican decision with Clarence Thomas the deciding vote (after taking millions in bribes), expanded that doctrine for both corporations and rich people, creating new “dark money” systems that wealthy donors and companies can use to hide their involvement in their efforts to get the political/legal/legislative outcomes they seek.
Last week the Republicans on the Court took even that a huge step farther, declaring that when companies or wealthy people give money to politicians in exchange for contracts, legislation, or other favors, as long as the cash is paid out after the deed is done it’s not a bribe but a simple “gratuity.”
So, first off, they’ve overthrown over 240 years of American law and legalized bribery.
Last week they also gutted the ability of federal regulatory agencies to protect average people, voters, employees, and even the environment from corporations that seek to exploit, pollute, or even engage in wage theft. This shifted power across the economic spectrum from a government elected by we the people to the CEOs and boards of directors of some of America’s most predatory and poisonous companies.
Finally, in the Trump immunity case, the Court ruled that presidents are immune from prosecution under criminal law, regardless of the crimes they commit, so long as they assert those crimes are done as part of their “official” responsibilities. And who decides what’s “official”? The six Republicans on the Supreme Court.
These actions — corporate personhood, money as speech, ending the Chevron deference to regulatory agencies, and giving the president life-and-death powers that historically have only been held by kings, shahs, mullahs, dictators, and popes — have fundamentally altered the nature of our nation.
It’s almost impossible to overstate the significance of this, or its consequences. We no longer live in America 1.0; this is a new America, one more closely resembling the old Confederacy, where wealthy families and giant companies make the rules, enforce the rules, and punish those who irritate or try to obstruct them.
In America 2.0, there is no right to vote; governors and secretaries of state can take away your vote without even telling you (although they still must go to court to take away your gun).
They can destroy any politician they choose by simply pouring enough cash into the campaign system (including dark, untraceable cash).
The president can now go much farther than Bush’s torturing and imprisoning innocent people in Gitmo without legal process: he can now shoot a person on Fifth Avenue in plain sight of the world and simply call it a necessary part of his job. Or impoverish or imprison you or me with the thinnest of legal “official” rationales.
We no longer live in America 1.0; this is a new America, one more closely resembling the old Confederacy, where wealthy families and giant companies make the rules, enforce the rules, and punish those who irritate or try to obstruct them.
America 2.0 is not a democracy; it’s an oligarchy, as I wrote about in The Hidden History of American Oligarchy. The South has finally — nearly — won the Civil War.
While it will be months or more likely years before all of these new powers the Republicans on the Court have given the president, rich people, and corporations begin to dawn on most Americans, they will, step-by-step transform this country into something more closely resembling Hungary or Russia than the democracies of Europe and Southeast Asia.
The only remedy at this late stage in this 50+ yearlong campaign to remake America is a massive revolt this fall at the ballot box, turning Congress — by huge majorities — over to Democrats while holding the White House.
If we fail at this, while there will be scattered pockets of resistance for years, it’ll be nearly impossible to reverse the course that America’s rightwing billionaires have set us on.
There has never been a more critical time in the history of our nation outside of the last time rich oligarchs tried to overthrow our democracy, the Civil War. Like then, the stakes are nothing less than the survival of a nation of, by, and for we the people.
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Meet Clarence Thomas’ Likely Successor If Trump Gets a 2nd Term
Fifth Circuit Court of Appeals Judge James Ho may just be the most reactionary federal appellate judge in the country.
Mar 12, 2024
Donald Trump’s greatest presidential achievement was remaking the U.S. Supreme Court. By appointing three young and doctrinaire judicial “originalists” to the bench—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—Trump ensured that the dourt would be dominated by a six-three conservative supermajority for years to come.
The right’s capture of the high court is the result of a longstanding crusade that some commentators date to a confidential 1971 memo authored by the late Justice Lewis F. Powell Jr., entitled “Attack on American Free Enterprise System.” Drafted on behalf of the Chamber of Commerce while Powell was a well-connected partner in a blue-chip law firm in Richmond, Virginia, the memo urged corporations to “recruit” lawyers of “the greatest skill” to represent their interests before the Supreme Court, which had moved steadily leftward under the stewardship of Chief Justice Earl Warren.
The memo was breathtaking in its scope and ambition. In it, Powell argued that “Under our constitutional system... the judiciary may be the most important instrument for social, economic, and political change.” It was imperative, in Powell’s view, for the Supreme Court to change course. As writer Steven Higgs noted in a 2012 article published by CounterPunch, the memo was “A Call to Arms for Class War: From the Top Down.”
“If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.”
It was only a matter of time until the Heritage Foundation, founded in 1973, and The Federalist Society, formed in 1982, heeded the call and began to compile lists of acceptable conservative candidates for appointment to the Supreme Court. Both groups were especially active in proposing candidate rosters for Trump, a process that culminated in him choosing Gorsuch, Kavanaugh, and Barrett.
But if you think that Trump is finished remaking the Supreme Court, think again. Supreme Court justices are human, and while they serve for an average of 26 long years, they are mortal, just like the rest of us.
Of all the court’s current members, Clarence Thomas is the oldest and the most likely to step down. Nominated by George H.W. Bush in 1991, Thomas will turn 76 in June. And he may not be in tip-top medical condition, having been hospitalized for a week with an undisclosed infection in 2022. Thomas isn’t the type to retire early, but if Trump is reelected and is able to nominate his successor, he may just decide the time is right to ride off down Interstate 80 with his wife Ginni in the luxury RV he purchased with a since-forgiven loan from one of his many uber-wealthy benefactors.
If Thomas decides to leave, a worthy successor is waiting in the wings—Fifth Circuit Court of Appeals Judge James Ho, who may just be the most reactionary federal appellate judge in the country. In the words of Vox senior legal correspondent Ian Millhiser, “If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.”
Just 51 years old, a youngster by Supreme Court standards, Ho was born in Taiwan and immigrated to the United States as a child. He grew up in San Marino, California, an upscale suburban community east of Los Angeles. He received his B.A. from Stanford and his law degree from the University of Chicago.
As an attorney, he logged short stints with the U.S. Department of Justice and served as chief counsel to the Senate Judiciary Committee before clerking for Thomas at the Supreme Court from 2005 to 2006. In 2008, Texas Governor Greg Abbott nominated him to replace Ted Cruz as that state’s solicitor general. Ho held the position until 2010.
In 2017, Trump named Ho to the Fifth Circuit, widely regarded as the country’s most conservative appellate court. He was confirmed by the Senate and was sworn in by Thomas himself in a closed ceremony in 2018 at the Texas mansion of billionaire Republican donor Harlan Crow.
Since then, Ho has carved out a reputation as an unflagging extremist. In a lecture last year at a Heritage Foundation conference in Washington, D.C., he encouraged his judicial colleagues to avoid “fair-weather originalism,” and to steel themselves from the “harsh criticism” they could expect from “elites” displeased by their interpretation of the Constitution’s original meaning. “If you’re an originalist only when elites won’t be upset with you, if you’re an originalist only when it’s easy,” he said, “that’s not principled judging.”
In his first opinion on the bench, a 2018 dissent, he argued that all laws limiting donations to political candidates and campaigns violate the First Amendment. In 2019, he wrote a concurring opinion validating Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health Organization, which subsequently went to the Supreme Court and resulted in the reversal of Roe v. Wade.
A Second Amendment absolutist, he penned another concurrence last year, upholding the right of individuals subject to domestic-violence restraining orders to own guns. The case, United States v. Rahimi, was argued in November 2023 and is currently before the Supreme Court.
Ho was also part of a three-judge Fifth Circuit panel last August that curtailed the use of the abortion pill mifepristone. The case, Danco Laboratories v. Alliance for Hippocratic Medicine, will be argued before the Supreme Court on March 24, and will have dramatic effects on the rights of women and pregnant people to reproductive freedom.
Outside of court, Ho has been an equally unflagging activist, writing law review articles and lecturing at law schools about the evils of “cancel culture.”
In 1993, Clarence Thomas told two of his law clerks that he planned to do his utmost to make the lives of liberals “miserable.” No doubt he has succeeded, perhaps beyond his wildest expectations. In any event, if Trump is reelected, Thomas will be able to rest assured that his legacy will live on with the appointment of James Ho, whom Trump named to his last Supreme Court shortlist in 2020, and, from all appearances, is auditioning to have his name called if the opportunity arises.
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How the Corporate Takeover of American Politics Began
Now is our best opportunity in decades to take on corporate power—at the ballot box, in the workplace, and in Washington.
Dec 29, 2022
The corporate takeover of American politics started with a man and a memo you’ve probably never heard of.
In 1971, the U.S. Chamber of Commerce asked Lewis Powell, a corporate attorney who would go on to become a Supreme Court justice, to draft a memo on the state of the country.
Powell’s memo argued that the American economic system was “under broad attack” from consumer, labor, and environmental groups.
In reality, these groups were doing nothing more than enforcing the implicit social contract that had emerged at the end of the Second World War. They wanted to ensure corporations were responsive to all their stakeholders — workers, consumers, and the environment — not just their shareholders.
But Powell and the Chamber saw it differently. In his memo, Powell urged businesses to mobilize for political combat, and stressed that the critical ingredients for success were joint organizing and funding.
The Chamber distributed the memo to leading CEOs, large businesses, and trade associations — hoping to persuade them that Big Business could dominate American politics in ways not seen since the Gilded Age.
It worked.
The Chamber’s call for a business crusade birthed a new corporate-political industry practically overnight. Tens of thousands of corporate lobbyists and political operatives descended on Washington and state capitals across the country.
I should know — I saw it happen with my own eyes.
In 1976, I worked at the Federal Trade Commission. Jimmy Carter had appointed consumer advocates to battle big corporations that for years had been deluding or injuring consumers.
Yet almost everything we initiated at the FTC was met by unexpectedly fierce political resistance from Congress. At one point, when we began examining advertising directed at children, Congress stopped funding the agency altogether, shutting it down for weeks.
I was dumbfounded. What had happened?
In three words, The Powell Memo.
Lobbyists and their allies in Congress, and eventually the Reagan administration, worked to defang agencies like the FTC — and to staff them with officials who would overlook corporate misbehavior.
Their influence led the FTC to stop seriously enforcing antitrust laws — among other things — allowing massive corporations to merge and concentrate their power even further.
Washington was transformed from a sleepy government town into a glittering center of corporate America — replete with elegant office buildings, fancy restaurants, and five-star hotels.
Meanwhile, Justice Lewis Powell used the Court to chip away at restrictions on corporate power in politics. His opinions in the 1970s and 80s laid the foundation for corporations to claim free speech rights in the form of financial contributions to political campaigns.
Put another way — without Lewis Powell, there would probably be no Citizens United — the case that threw out limits on corporate campaign spending as a violation of the “free speech” of corporations.
These actions have transformed our political system. Corporate money supports platoons of lawyers, often outgunning any state or federal attorneys who dare to stand in their way. Lobbying has become a $3.7 billion dollar industry.
Corporations regularly outspend labor unions and public interest groups during election years. And too many politicians in Washington represent the interests of corporations — not their constituents. As a result, corporate taxes have been cut, loopholes widened, and regulations gutted.
Corporate consolidation has also given companies unprecedented market power, allowing them to raise prices on everything from baby formula to gasoline. Their profits have jumped into the stratosphere — the highest in 70 years.
But despite the success of the Powell Memo, Big Business has not yet won. The people are beginning to fight back.
First, antitrust is making a comeback. Both at the Federal Trade Commission and the Justice Department we’re seeing a new willingness to take on corporate power.
Second, working people are standing up. Across the country workers are unionizing at a faster rate than we’ve seen in decades — including at some of the biggest corporations in the world — and they’re winning.
Third, campaign finance reform is within reach. Millions of Americans are intent on limiting corporate money in politics – and politicians are starting to listen.
All of these tell me that now is our best opportunity in decades to take on corporate power — at the ballot box, in the workplace, and in Washington.
Let’s get it done.
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