America’s very own historian is at it again. Over the weekend Newt Gingrich vowed that as a future president he would overrule “activist judges” who rule contrary to American cultural heritage. He warned of an uprising against the courts unless they start issuing rulings that he agrees with, and said, he “understood these issues better than lawyers because he’s a historian.” Newt was talking about a “liberal judge” ruling against prayer in schools or something but his comments raised an interesting question.
Who has used “judicial activism” most effectively in America lately?
The answer, of course, is the opposite of Newt’s declaration.
Now sure, there’s enough truth in the idea of liberal activist judges and their rulings but these typically are social and cultural issues rather then corporate ones. And with a lazy press, this insidious narrative: that the only “activist judges” are liberal ones giving welfare to blacks, or outlawing religion, or killing babies, becomes conventional wisdom (CW).
Conservatives deploy a different kind of activism, one that benefits corporations, the recent Citizens United case being the latest and most egregious example.
But they are also great at projection. They take whatever it is they are doing, and project it onto liberals.
So this sort of corporate activism on the right passes unnoticed. But it’s been a regular staple since the Powell Memo.
Don’t know what that is? You’re not alone.
Written in 1971 by corporate attorney, soon to be Supreme Court justice Lewis Powell, this secret document was presented to the US Chamber of Commerce, and became a blueprint for the corporate state we have today. Powell saw great danger in the progressive message of the 60’s and warned that, corporations must organize together and “fund a drive to achieve political power through united action.” As an attorney, he stressed the courts as the key battleground. “The judiciary may be the most important instrument for social, economic and political change.”
Since this memo was written, corporations and their political allies have taken his message to heart. They have quietly funded conservative legal foundations, with the Federalist Society being the most well known, to propagate their corporate legal philosophy: that corporations are people with all the rights inherent.
The Robert’s Court agrees. The Citizen United v FEC case was nothing if not breathtakingly radical with its disregard for precedent and its departure from narrow rulings comporting with established cases, to take a narrow campaign finance issue and decide a much larger one, allowing unlimited corporate spending on political campaigns.
I’m pretty sure that qualifies as judicial activism.
But what do I know. I’m not a historian.