Newsweek - USA (2019-11-08)

CALLS FOR ACTION

Trump’s requests for help

from Volodymyr Zelensky

(top) could see Senate

Majority Leader Mitch

McConnell (left) fending

off an impeachment

trial; memo author Lewis

F. Powell Jr (below).

What would be wrong with court-

packing? Although your brief in the

gun control case is blunt, you don’t

mention the Merrick Garland event.

Isn’t that really the issue, what

happened there?

I think that the effort to control the

Court went well back before the Gar-

land-to-Gorsuch switch. I think it goes

all the way back to that original Powell

memo in 1971. [Shortly before he was

appointed to the Supreme Court, Lewis

F. Powell Jr. wrote a confidential mem-

orandum to the U.S. Chamber of Com-

merce that later leaked to the media.]

The Powell memo was a memo-

randum for big corporate donors,

through the vehicle of the Chamber

of Commerce, which was the nominal

client. It basically responded to cor-

porate panic that the environmental

movement, the civil rights movement,

the anti-war movement were disrup-

tive of their affairs. One element was

a recommendation that an activist

court could be a very helpful thing

to corporate America if it was the

right kind of activist Court. And they

went right to work to accomplish that.

The Pacific Legal Foundation was set

up two years later by conservative

lawyers to execute on the memo. So

this is, what, a 48-year-long effort

now? So, to say that it started with

Garland-to-Gorsuch [doesn’t capture

what’s going on].

Yes, Garland-to-Gorsuch was

vital because [otherwise they’d] lose

the 5-4. And jamming Kavanaugh

through was essential to preserving

the 5-4. But those two political quar-

rels obscure the underlying situation,

which is a Court that is happy to

make all these 5-4 partisan decisions. 

I’ll give you an appendix we’ve done.

[The appendix, to an issue brief he

wrote in April, lays out what White-

house considers 73 “partisan” rulings

in civil cases decided from the Court’s

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but its executive vice president, Leon-

ard Leo, has played a key role in the

selection and confirmation of Repub-

lican judges and justices.] In fact, it

seems to me that it’s a dispositive

role and that it’s funded by anon-

ymous donors. And once you get

your selection through the Feder-

alist Society, the campaign—the

political campaign—for their Sen-

ate confirmation is funded by the

Judicial Crisis Network, again by

anonymous donors. And then, once

you get them on the Court, you get

this barrage of instruction coming

at them from an armada of front

groups who either represent the

nominal plaintiff or who file amicus

briefs and, again, don’t disclose their

funding. So it could be that a very

small group of very big funders has

actually got very disturbing control

and influence on the makeup and

output of the Court.

So you favor legislation to

disclose funding—

Yep. We have bills to disclose who’s

behind amicus briefs as well as the

broader DISCLOSE Act [concerning

organizations spending money in fed-

eral elections].