The “Powell Memo” and the Supreme Court: A counteroffensive against the many

Apr 6, 2023
Graphic with image of Lewis Powell and excerpts from Powell Memo.


Beginning with overturning Roe v. Wade, the ultra right-wing Supreme Court continues to attack hard-won and elementary democratic rights in the United States. The following article is the fourth in our “Crimes of the Supreme Court” series. While other entries focus on key decisions in the Court’s history, explaining their political and historical significance, context, and consequences to demonstrate the fundamentally reactionary nature of the Supreme Court, this entry focuses on Supreme Court Justice Lewis F. Powell Jr. Powell’s story before and during his tenure on the Court encapsulates not only the renewed right-wing turn in the Supreme Court but also a broader, revived wave of legal and ideological battles against progressive struggles.

Introduction: The domestic right-wing counteroffensive

By the early 1970s, the global revolutionary tide of socialist and national liberation struggles was at its apex, and the tide was washing over the U.S., with expanding and increasingly militant social movements and political organizations. The beginning of “neoliberalism” was a domestic aspect of the coming global counterrevolution, which devastated the world for decades.

This article tells the story of how the right wing of the capitalist class came to drive a new set of reactionary Supreme Court rulings, government policies, and ideological battles against democracy and the basic democratic rights our class won and that the right wing soon started rolling back. A key figure in this anti-democratic turn was Lewis F. Powell Jr., a tobacco company executive turned Supreme Court Justice. In the transition between the two roles, he wrote his infamous “Powell Memo.”

In hindsight, the private memorandum Lewis F. Powell Jr. sent to the U.S. Chamber of Commerce on August 23, 1971—known as the “Powell Memo”—in many ways represents the inaugural moment in this counteroffensive. Titled, “Attack on American Free Enterprise System,” the Memo clearly expressed the sharpness of the class struggle at that time and encapsulated the capitalist class’ fear that they were losing the battles of ideas and the world. It undoubtedly laid the groundwork for some key components of U.S. imperialism’s new offensive against the global revolutionary upsurge that characterized the immediate post-World War II environment, an offensive that is still with us today.

Understanding the background, context, and content of the Memo helps us get a sense of the right-wing counteroffensive against domestic people’s movements. Powell eventually entered the Supreme Court and helped usher in a wave of reactionary rulings against the people and for corporate profits. Thus, while the exact impacts of the Memo are hard to ascertain, they eventually made their way into the law books, attacking affirmative action and establishing a theory of corporate speech and “personhood.” More immediately, after the Memo’s circulation, the Chamber of Commerce “expanded its base from around 60,000 firms in 1972 to over a quarter of a million ten years later,” spending almost $1 billion annually to promote their interests [1].

The ideological stakes at play in the Powell Memo

Powell wrote and sent the confidential memo at the request of one of his colleagues, Eugene B. Sydnor, Jr., who chaired the education committee of the U.S. Chamber of Commerce, for a high-level discussion with the Chamber’s Vice President Arch Booth the next day. The Chamber of Commerce is not, as the name might imply, a government agency, but is the largest private pro-business lobbying group in the country. Because the Memo was written for the capitalist class by one of their most fervent ideologues, it displays the fears and ambitions of the imperialists in the most blatant manner, revealing exactly how they speak to each other when they don’t have to feign decorum or decency, providing a glimpse into how much they feared progressive movements.

“No thoughtful person can question that the American economic system is under broad attack,” the Memo begins [2]. The problem is not so much with the usual suspects like “the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic.” Although such “extremists of the left” are growing in numbers, support, and legitimacy in unprecedented fashion, Powell continues, they are still relatively minor players on their own.

Powell’s primary fear was that revolutionaries, the usual suspects, were now influencing “perfectly respectable elements of society” such as “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” In essence, Powell expresses how the global tide of revolutionary and progressive struggles sweeping the world during that period were normalizing and popularizing radical political change and demands [3]. As he puts it, the issue is that respectable institutions like the campus were hijacked “by minorities” who “are the most articulate, the most vocal, the most prolific in their writing and speaking.”

Powell’s insistence on the influence of vocal minorities—a prelude of sorts to the “silent majority”—was more than just a rhetorical flourish. Although the “Marxist doctrine that the ‘capitalist’ countries are controlled by big business” had widespread currency at the time, for Powell, nothing could be further from the truth. Simply put, Powell’s memo claimed that in capitalist countries capitalists had no influence or control over the government or society. This ridiculous claim is phrased frankly:

“…as every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of ‘lobbyist’ for the business point of view before Congressional committees. The same situation obtains in the legislative halls of most states and major cities.”

Powell goes further still, in a sentence that constructs the corporation not only as a person, but as a minority person in need of protection: “One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the ‘forgotten man.’”

This dire situation, in which the very existence of capitalism and imperialism are at stake—claims that are, to say the least, exaggerated—calls for drastic and wide-ranging responses. To address the supposed exclusion of corporations in the U.S. government and the attack on the capitalist system, Powell included a vast list of recommendations for pursuing their ideological agenda, in which the Chamber of Commerce would play a central and organizing role. Powell’s upbringing and professional career account for his deep concern for the position of the corporation in U.S. society and politics.

Powell: A fighter for “oppressed” tobacco companies

With a family lineage traced back to “one of the original Jamestown settlers,” Powell graduated from an elite prep school, McGuire’s University School in Richmond, Virginia in 1925 [4]. From there, he ascended the ranks of the political elite, earning a Master of Laws degree from Harvard Law School in 1932 before returning to Virginia and starting a long career with a Richmond law firm. After a brief stint as an intelligence officer in the Army, Powell integrated himself into Virginia’s political scene and rose through the ranks of the American Bar Association, becoming the ABA’s president in 1965.

Powell served on over a dozen boards, including the Colonial Williamsburg Museum and, most pertinently, the tobacco giant Philip Morris. Powell joined Philip Morris’ Board of Directors in 1964 at a time when, historian Jeffrey Clements notes, “the corporation sought to mitigate the US Surgeon General’s report about the grave dangers of smoking” [5].

When he penned his infamous memo, Powell was in the trenches defending Philip Morris and other tobacco corporations through their lobbying group, the now-discredited Tobacco Institute. He was also busy defending big tobacco when Richard Nixon asked him to serve on the Supreme Court in 1971 (although his appointment went into effect in 1972).

During his tenure at the Tobacco Institute, he fought against the “radicals” and liberals in public health and education who were increasingly sounding the alarm on the dangers of tobacco and nicotine addiction. In their 1967 annual report, issued on behalf of Powell and the rest of the Philip Morris board, they deplored how “unfortunately the positive benefits of smoking which are so widely acknowledged are largely ignored by many reports linking cigarettes and health, and little attention is paid to the scientific reports which are favorable to smoking” [6].

Powell was nothing if not a champion of free-enterprise, facts be damned.

The ideological counteroffensive

It’s not hard to draw the line between Powell’s defense of big tobacco and the broader capitalist system, on the one hand, and his derision of public health, education, and the public interest, on the other. For Powell, it was a small and logical step to move from attacking health researchers to attacking other “revolutionaries” and those they influenced in “respectable” places like universities.

In addressing “what can be done about the campus,” Powell outlines an array of tactics and strategies to beat back the insurgent student tide and revert educational institutions away from critical inquiry. He called for the Chamber of Commerce to establish a cadre of “highly qualified” pro-capitalist scholars, a full-time paid staff of speakers, and a Speaker’s Bureau that would advocate for capitalists.

The Chamber’s “faculty of scholars” should be given “incentives” to publish prolifically in scholarly journals because “one of the keys to the success of the liberal and leftist faculty members has been their passion for ‘publication’ and ‘lecturing.’” Powell wasn’t concerned with the number of leftist faculty per se, and his memo only cited one by name: Herbert Marcuse, one of the few remaining critical theorists who remained committed to organizing and who supervised, among other important revolutionaries (and against the advice of his colleagues), the doctoral work of Angela Davis [7].

Those like Marcuse “need not be in a majority” because “they are stimulating teachers… prolific writers and lecturers,” according to Powell [8]. In fact, “as his attention to charismatic teaching, textbooks, and other writings shows, Powell based his strategy for ideological warfare on the intellectual productivity that he observed among progressive thinkers” [9].

The historical context for Powell’s ire is instructive, as it was during this time that oppressed nationalities were forcing changes in hiring practices, curricular content, and even creating physical spaces dedicated to the study of radical politics and oppressed nationalities and successfully fighting for open admissions.

The militant organized movements of students, workers, Black people, Chicano people, women, the LGBTQ community, and others—many of whom were openly Marxists—forced open some space within universities and society, legitimizing their grievances, proposals, and knowledge [10]. Importantly, the demands of the student movements “were organized around the redistribution of outcomes in the university and in US society generally” [11]. They helped, in part, to fundamentally restructure what and whose knowledge counted by positioning oppressed groups as central knowledge producers.

Unable to captivate audiences with their ideas or teaching, Powell urged the Chamber to ensure capitalist ideologues would gain audiences on campus. He called on the Chamber to “insist upon equal time on the college speaking circuit” between critics and proponents of capitalist exploitation and oppression. Importantly, they must be “attractive, articulate and well-informed speakers” who “exert whatever degree of pressure—publicly and privately” to ensure equal speaking opportunities” [12].

Powell’s focus on “equal speaking opportunities” denies the larger political and historical context of the times, as if socialists and capitalists get equal time and space in the mainstream news outlets or corporate papers. At the same time, within the universities, they’re still mobilized to promote right-wing ideologues. Today, it’s clear to growing numbers of people in the U.S. that “freedom of speech” policies are intended to limit the dissemination of and engagement with revolutionary ideas.

The Supreme Court: Defending white supremacy and corporate speech

Powell’s disdain for revolutionaries wasn’t personal (or wasn’t primarily personal); it was political. Take, for example, his role in the 1978 Supreme Court case Regents of the University of California v. Bakke, a ruling that was a significant step on the way to undoing affirmative action. Although the ruling sustained affirmative action, it declared racial quotas for university admissions to be unconstitutional and, specifically, in violation of the Equal Protection Clause of the Fourteenth Amendment.

In his majority opinion, Powell claimed that “the United States had become a Nation of minorities” and the U.S. Constitution was meant “to overcome the prejudices not of a monolithic majority, but of a ‘majority’ composed of various minority groups” [13]. White people were, according to his ruling opinion and his own beliefs, minorities deserving protection [14].

In 1982, he issued the majority opinion in Central Hudson Gas & Electric Corporation v. Public Service Corporation of New York, declaring that private utility and energy corporations could, with the protection of the right-wing activist court, dominate the imaginary “marketplace of ideas.” The case revolved around the prohibition of energy corporations from promoting their services during and after the 1973 oil crisis. Powell’s opinion affirmed that corporate “expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” The opinion “rejected the ‘highly paternalistic’ view that government has complete power to suppress or regulate commercial speech” [15].

With the backing of a new barrage of pro-capitalist think tanks and institutes, Powell led the Supreme Court on a pro-corporate rampage that was based on an illegitimate precedent. As discussed in the Liberation School article on Santa Clara County v. Southern Pacific Railroad Company, the 1886 Supreme Court case has been falsely interpreted as setting the “precedent” for corporate personhood [16]. The case did not rule on the question of corporate personhood. Rather, a statement on corporate personhood was included in a headnote added to the case. Headnotes are not legally binding and therefore do not impact the establishment of legal precedent.

Nevertheless, the same year that Powell led the court to undo affirmative action in the Regents of the University of California, he also established “corporate speech” as protected under the First Amendment. That case, First National Bank of Boston v. Bellotti, for the first time held that corporations are protected by the First Amendment and therefore are entitled to “free speech.” Powell delivered the majority opinion in the case, stating “the Court has not identified a separate source for the right when it has been asserted by corporations.” In the footnote accompanying the statement, he claims that “it has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment,” incorrectly citing Santa Clara as legal precedent [17]. That case includes no mention of corporate personhood or corporations as protected classes under the 14th amendment. Instead, it appears in a headnote or introduction written by a journalist who was previously the president of a railroad company. Headnotes are not legally binding and, as such, Powell’s notion of “corporate speech” is without any legal justification.

With Powell’s new theory of corporate speech, “the Court struck down law after law in which the states and Congress sought to balance corporate power with the public interest” [18].

Conclusion: The struggle for socialism and liberation today

Powell’s Memo and interventions in the Supreme Court were part of an overall strategy to defeat or at least de-radicalize the revolutionary movements of the time, especially the radical transformations they achieved in education. A central element in the capitalist state, education always plays an important role in the class struggle, as it is a primary place where we form our ideology or worldview, whether we know it or not.

The struggle wasn’t—and isn’t—confined to the university, and in fact, its radical edge comes from its ability to link the university to broader social struggles, from anti-imperialism and socialism to anti-racism and sexism, then and now. As the Powell Memo shows, for the ruling class at the time, the balance of forces tipped too far toward the exploited and oppressed. In response, the capitalists launched a virulent counteroffensive in all areas of society, and Powell, his role on the Supreme Court, and his Memo were integral parts of this reactionary wave we need to, and will, push back.

References

[1] David Harvey, A Brief History of Neoliberalism (New York: Oxford University Press, 2005), 43.
[2] Lewis Powell, “Attack on American Free Enterprise System,” PBS. Available here.
[3] See Brian Becker, “From Inter-Imperialist War to Global Class War: Understanding Distinct Stages of Imperialism,” Liberation School, 28 July 2018. Available here.
[4] Tinsley E. Yarbrough, “Powell, Lewis F., Jr. (1907-1998), Supreme Court Justice,” American National Biography, 01 January 2001.
[5] Jeffrey D. Clements, Corporations are Not People: Reclaiming Democracy from Big Money and Global Corporations (San Francisco: Berrett-Koehler Publishers, 2014), 21.
[6] Cited in Ibid., 22-23.
[7] Gabriel Rockhill, “Critical and Revolutionary Theory: For the Reinvention of Critique in the Age of Ideological Realignment,” in Domination and Emancipation: Remaking Critique, ed. D. Benson (Lanham: Rowman & Littlefield, 2021).
[8] Powell, “Attack on American Free Enterprise System.”
[9] Roderick A. Ferguson, We Demand: The University and Student Protests (Oakland: University of California Press, 2017), 44.
[10] See Stephen Ferguson II, Philosophy of African American Studies: Nothing Left of Blackness (New York: Palgrave Macmillan, 2015), 16.
[11] Ferguson, We Demand, 40.
[12] Powell, “Attack on American Free Enterprise System.”
[13] Regents of the University of California v. Bakke, 438 U.S., 265 (1978), 292. Available here.
[14] Ibid., 295.
[15] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S., 557 (1980), 561, 562. Available here.
[16] Curry Malott, “Corporate Personhood, Monopoly Capital, and the Precedent that Wasn’t: The 1886 ‘Santa Clara’ Case,” Liberation School, 09 February 2023. Available here.
[17] First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), footnote 15. Available here.
[18] Clements, Corporations are Not People, 25.

The life and legacy of Harry Haywood

The life and legacy of Harry Haywood

The following article was originally published on Liberation News in 2011 and accompanies this Liberation School article on Haywood's contributions to the "Black Belt" thesis. Introduction There is an old saying that “history is written by the victors.” While subject...