Reactionaries, Powell Memo and Judicial Activism

To explain why the Powell Memo is important, I’ll begin with a summary of the games played by reactionaries which explains the rhetorical power they wield. There are two main aspects of the reactionary mind (* see below). The most interesting is described by Corey Robin, the reason I’ve come to refer to reactionaries as the “Faceless Men”.

Reactionaries steal the thunder and mimic the tactics of the political left, and in doing so co-opt political movements and even revolutions, turning the latter into counterrevolutions. More interesting still is how reactionaries pose as what they are not by claiming labels that originated with their opponents — calling themselves classical liberals and whatever else catches their fancy. They pretend to be defenders of constitutional originalism while they radically transform the Constitution, such as pushing corporate personhood and citizenship, something that would have horrified the American revolutionaries and founders.

The other side of this is what reactionaries project onto others. They are the greatest purveyors of political correctness in attacking free speech, an area in which they show their brilliance in controlling narrative framing. They manage to portray their enemies as doing what they are most guilty of and through this tactic they silence and discredit others.

In this way, the reactionary element of the intellectual elite, Hollywood elite, and banking elite (as seen in the career of Steve Bannon) somehow manages to convince their followers that they are average Americans in a noble fight against the ruling elite. The target often ends up being students at state colleges who, according to the data and opposite of the reactionary portrayal, are mostly those working their way out of the working class — if meritocracy exists at all in the United States, this is the closest we get to it. But anyway, it’s highly doubtful that colleges are serving a genuinely democratic purpose at a time when corporate and other private funding is flooding into colleges, and so the accusation of their being bastions of the liberal faith is a sad joke. This state of confusion is intentionally created by reactionaries — up is down and those who are down are the enemy to be blamed for everything.

Or consider the accusation of a liberal media bias. It’s odd where I most often here this bizarre claim. It’s regularly repeated in the corporate media itself. Even the supposedly liberal media gives a platform to people to spout this bullshit. So, what kind of liberal bias is it that criticizes liberal bias by giving equal or greater time to right-wingers? That is no exaggeration, in that even NPR gives more airtime to corporatist and right-wing think tanks than to those on the anti-corporatist left. that is unsurprising since NPR gets most of its funding from private sources such as corporations, not from the government. Public radio?

This brings me to an example that has been on my mind for a while. I’ve been meaning to write about it. This seems as good of a time as ever. Let this be my first post of the new year, as clarifying where we stand as a society and how we got here.

The infamous Powell Memo (AKA Powell Manifesto) was only recently leaked, but it was written way back in 1971. Ever since that time, it has been the guiding vision of a cabal of right-wing oligarchs and plutocrats. It set out a strategy in how to take over the government and it was successful. Do you know how those on the political right are always alleging a left-wing conspiracy to pack the courts with activist judges? Well, that is an expression of a guilty conscience. It’s exactly what the right-wing ruling elite has been doing this past half century, culminating in the nomination of Judge Brett  Kavanaugh to the Supreme Court. Predictably, this so-called constitutionalist just so happens to be a big supporter of executive power, an agenda that more fully began being pushed under the administration of George W. Bush. There is absolutely nothing constitutionalist about this, as it undermines the very core pillar of separation and balance of powers. Instead of being a countervailing force, right-wingers are seeking to create a corporatocratic Supreme Court that serves at the behest of a right-wing presidency and political system.

That isn’t to entirely blame them, as the Democratic Party has shifted so far right on these issues that they are now to the right of Republicans from earlier last century. The reactionary mind has a way of infecting nearly everything and everyone. Our entire government has become a reactionary institution, but it’s important that we keep in mind who planned and led this coup. Then again, Lewis Powell who wrote the Powell Memo did so not only as a corporate lobbyist but also as a Democrat. And to show the bipartisan nature of this corporatocracy, it was Richard Nixon as a Republican president who that same year nominated him to the Supreme Court and the next year he was appointed. Still, it was the right-wing ALEC (American Legislative Exchange Council) that was most directly inspired by the Powell Memo, the organization that then helped enact this neoliberal and neo-fascist coup.

It’s not only the respectable good liberals of the ‘mainstream’ left that was in the dark about these machinations. Before the Powell Memo was leaked, anyone who pointed to the corporate takeover would have been called a conspiracy theorist, and so no more welcome in the Democratic Party than in the Republican Party. Americans in general couldn’t see what was happening because the decisions and exchange of money happened mostly behind closed doors. Besides, the corporate media had no interest in reporting on it, quite the opposite of course. There was no transparency, as planned, and so there was no accountability. Democracy dies in the dark.

Only now that Clown-Fuhrer Trumpf is in power do we suddenly get some push back showing up in the mainstream. The struggle for power within the ruling elite goes into high gear. And our dear leader has put Judge Kavanaugh onto the Supreme Court. I’ve heard stalwart Republicans who despise and fear Trump, nonetheless, supporting him to the extent that he is pushing for a ‘conservative’ judiciary which supposedly opposes all those activist judges on the left. Yet Kavanaugh is as activist as they come. The main reason Trump picked him probably was because, when the time comes, the Supreme Court can be swung in defense of the administration.

After the Barack Obama followed the example of George W. Bush in further advancing executive power, now Democrats are thinking that their support for authoritarianism may have been a bad die after all. They assumed they were going to maintain power since it was obvious to them that Hillary Clinton couldn’t lose the presidential election and so that the unrestrained executive could’ve then been used for their more paternalistic variety of friendly fascism. Trump and gang, of course, make a convenient scapegoat for Democratic sins. But that is a useless game at this point.

The joke is on all of them. And the entire political system is the punchline.

* * *

* What is the distinguishing feature of the reactionary mind? Maybe it has to do with the Dark Triad, the strong correlation between narcissism, psychopathy, and Machiavellianism. In particular, the last one might be key. Research has shown that those who are most fearful of Machiavellianism in fantasizing about conspiracies existing behind every door and lurking under the bed are themselves more prone to acting in Machiavellian ways. That very much sounds like the reactionary mind.

In political terms, the reactionary mind gets expressed by the social dominance orientation (SDO), which essentially is another way of speaking of Machiavellianism. This is where authoritarianism comes in, as SDO types are attracted to and have talent in manipulating authoritarian followers. As such, maybe authoritarians will only be reactionary to the degree that a society becomes reactionary and SDO types gain power, since authoritarians will conform to almost any social norm, good or bad.

It’s only under these conditions that we can speak of a distinct reactionary mind. The arising to dominance of the reactionary mind indicates that something is being reacted to. From other research, what seems to elicit this is rising inequality and segregation that foments mistrust, fear, and anxiety. This is what we see before every period of instability and, in reaction, there are those who seek to enforce order.

What makes reactionaries unique is their innovativeness in how they go about this. They aren’t traditionalists, although they also will co-opt from traditionalists as they co-opt from the political left. One of the purest forms of the reactionary mind is nostalgia which, unsurprisingly, rarely has anything to do with the historical past. It is co-opting the rhetoric and emotion of tradition with little respect or concern about actual traditions.

A key example of this anti-traditional pseudo-traditionalism is constitutional originalism. What the reactionary right is pushing is a complete contradiction and betrayal of what the American Revolution was fought for and what the United States was founded upon, specifically founded on the Declaration of Independence and the first constitution of the Articles of Confederation. These reactionaries will claim that liberalism is an attack on American political tradition, even as any informed person knows that liberalism (including in its progressive and radical forms) was core to American society from the beginning. Consider the view that a constitution is a living document as a pact of a specific community of people, an American tradition that came out of Quaker constitutionalism and (by way of Quaker-raised John Dickinson) informed the democratic sensibility of the Articles of Confederation.

Such history is inconvenient and so irrelevant to the reactionary mind. But because reactionaries took control so early with the Constitutional Convention, their counterrevolution permanently obscured the true history and that has left the American population with collective amnesia. As demonstrated by the extremes of Donald Trump, reactionaries love to invent ‘facts’ and then to repeat them until they become accepted or else until all sense of truth is lost. This is what makes the reactionary mind Machiavellian and, as such, finds itself at home in the Dark Triad.

* * *

Powell Memorandum:

CONFIDENTIAL MEMORANDUM
Attack on American Free Enterprise System

DATE: August 23, 1971
TO: Mr. Eugene B. Sydnor, Jr., Chairman, Education Committee, U.S. Chamber of Commerce
FROM: Lewis F. Powell, Jr.

Neglected Opportunity in the Courts

American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.

Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business. Perhaps the most active exploiters of the judicial system have been groups ranging in political orientation from “liberal” to the far left.

The American Civil Liberties Union is one example. It initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court. Labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena. Their success, often at business’ expense, has not been inconsequential.

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.

As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort.

* * *

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How the Right Packed the Court
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Extremists on the Bench: Five Years After Citizens United, Our Rogue Supreme Court
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Context of ‘August 23, 1971 and After: ’Powell Memo’ Leads to Massive Pro-Business Efforts to Influence Political, Social Discourse’
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The Powell Memo
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* * *

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Brett Kavanaugh and the new judicial activism
by Matthew Yglesias

Judge Kavanaugh’s Activist Vision of Administrative Law
by Robert V. Percival

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by Elliot Mincberg

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Why the Supreme Court is now America’s most dangerous branch
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by Charles Pierce

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by Peter M. Shane

How Brett Kavanaugh Worked to Weaponize the War on Terror
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Kavanaugh and the Authoritarians

I don’t care too much about the Brett Kavanaugh hearings, one way or another. There doesn’t appear to be any hope of salvation in our present quandary, not for anyone involved (or uninvolved), far beyond who ends up on the Supreme Court.

But from a detached perspective of depressive realism, the GOP is on a clear decline, to a far greater degree than the Democrats which is saying a lot. Back during the presidential campaign, I stated that neither main political party should want to win. That is because we are getting so close to serious problems in our society or rather getting closer to the results of those problems that have long been with us. Whichever party is in power will be blamed, not that I care either way considering both parties deserve blame.

Republicans don’t seem to be able to help themselves. They’ve been playing right into the narrative of their own decline. At the very moment they needed to appeal to minorities because of looming demographic changes, they doubled down on bigotry. Now, the same people who supported and voted for a president who admitted to grabbing women by the pussy (with multiple sexual allegations against him and multiple known cases of cheating on his wife) are defending Kavanaugh against allegations of sexual wrongdoing.

This is not exactly a surprise, as Trump brazenly and proudly declared that he could shoot a person for everyone to see and his supporters would be fine with it. And certainly his publicly declaring his authoritarianism in this manner didn’t faze many Republican voters and Republican politicians. He was elected and the GOP rallied behind him. Also, it didn’t bother Kavanaugh as his acceptance of the Republican nomination implies he also supports authoritarianism and, if possible, plans on enacting it on the Supreme Court. Whether or not true that Trump could get away with murder, it is an amazing statement to make in public and still get elected president for, in any functioning democracy, that would immediately disqualify a candidate.

It almost doesn’t matter what are the facts of the situation, guilt or innocence. Everyone knows that, even if Kavanaugh was a proven rapist, the same right-wing authoritarians who love Trump would defend Kavanaugh to the bitter end. Loyalty is everything to these people. Not so much for the political left in how individuals are more easily thrown under the bus (or like Al Franken who threw himself under the bus and for a rather minor accusation of an inappropriate joke, not even involving any inappropriate touching). Sexual allegations demoralize Democrats, consider the hard hit it took with Anthony Weiner, in a way that never happens with Republicans who always consider a sexual allegation to be a call to battle.

The official narrative now is that the GOP is the party of old school bigots and chauvinistic pigs. They always had that hanging over their heads. And in the past, they sometimes held it up high with pride as if it were a banner of their strength. But now they find themselves on the defense. It turns out that this narrative they embraced probably doesn’t have much of a future. Yet Republicans can’t find it in themselves to seek a new script. For some odd reason, they are heavily attached to being heartless assholes.

This is even true for many Republican women. My conservative mother who, having not voted for Trump, has been pulled back into partisanship with the present conflict and has explicitly told me that she doesn’t believe men held accountable for past sexual transgressions because that is just the way the world was back then. Some conservative women go even further, arguing that men can’t help themselves and that even now we shouldn’t hold them accountable — as Toyin Owoseje reported:

Groping women is “no big deal”, a Donald Trump supporting mother told her daughters on national television when asked about the sexual misconduct allegations levelled against Supreme Court nominee Brett Kavanaugh.

Among Republicans, we’ve been hearing such immoral defenses for a long time. There is another variety of depravity to be found among Democrats, but they at least have the common sense to not openly embrace depravity in their talent for soft-pedalling their authoritarian tendencies. Yet as full-blown authoritarian extremists disconnected from the average American, Republicans don’t understand why the non-authoritarian majority of the population might find their morally debased views unappealing. To them, loyalty to group is everything, and the opinions of those outside the group don’t matter.

The possibility that Kavanaugh might have raped a woman, to right-wing authoritarians, simply makes him seem all the more of a strong male to be revered. It doesn’t matter what he did, at least not to his defenders. This doesn’t bode well for the Republican Party. With the decline they are on, the only hope they have is for Trump to start World War III and seize total control of the government. They’ve lost the competition of rhetoric. All that is left for them is force their way to the extent they can, which at the moment means trying to push Kavanaugh into the Supreme Court. Of course, they theoretically could simply pick a different conservative nominee without all the baggage, but they can’t back down now no matter what. Consequences be damned!

Just wait to see what they’ll be willing to do when the situation gets worse. Imagine what would happen with a Trump-caused constitutional crisis and Kavanaugh on the Supreme Court. However it ends, the trajectory is not pointing upward. The decline of the GOP might be the (further) decline of the United States.