Memory of the late Justice Lewis Franklin Powell, Jr: Dialogue with Robert Reich

The Memorandum of LFP of 23 August 1971 to the U.S. Chamber of Commerce and its Sequelae

First, I highly recommend reading the full post of the distinguished and wise Robert Reich here:

The Corporate Legal Movement

Robert Reich here makes an argument that is so very important, that he should speak for himself here:

For years, conservatives have railed against what they call the “administrative state” and denounced regulations.

But let’s be clear. When they speak of the “administrative state,” they’re talking about agencies tasked with protecting the public from corporations that seek profits at the expense of the health, safety, and pocketbooks of average Americans.

Regulations are the means by which agencies translate broad legal mandates into practical guardrails.

Substitute the word “protection” for “regulation” and you get a more accurate picture of who has benefited — consumers, workers, and average people needing clean air and clean water.

* * *

I spent four years as policy director at the Federal Trade Commission, advising the commissioners on how best to protect the public from corporate excesses. I spent four more years as secretary of labor, protecting American workers from the depredations of big American corporations.

Most large corporations I dealt with obeyed laws and regulations designed to protect the public, but they spent a great deal of money trying to prevent such laws and regulations from being created in the first place and additional efforts contesting them through the courts.

* * * [Here, Robert Reich gives a short summary of the very unfortunate Supreme Court Decision, last week, in Roper Bright Enterprises v. Raimondo, 603 U.S. ____, the long opinions, collective over 100 pages, appear in full here:

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf ]

Make no mistake: Consumers, workers, and ordinary Americans will be hurt by these decisions. Big corporations — especially their top executives and major investors — will make even more money than they’re already making because of them.

**

These rulings are the consequence of a corporate strategy launched 53 years ago.

In 1971, the U.S. Chamber of Commerce, then a modest business group in Washington, D.C., asked Lewis Powell, then an attorney in Richmond, Virginia, to recommend actions corporations should take in response to the rising tide of public protections (that is, regulations).

So far, so good.

Please, please read the full column of Robert Reich.

I have never failed to be enrich by the actions or the writings or commentary of Robert Reich, a true leader of the movement with our core values: A diverse, free society, which creates an environment of reason in which to promote mutual self-interest of a wide populace that is welcome of vigorous free speech and reasoned discussion in the Spirit of the Age of Enlightenment as is embodied best by the truly great Gotthold Ephraim Lessing in his, Nathan der Weise (which, surprisingly enough, in that German and English are cousin languages, means: Nathan the Wise).

Nathan der Weise is definitely a work I recommend we all read for core values. And also: David Hume, who as a very young man, wrote the Treatise of Human Nature (this philosophic genius, as an almost Mozartian prodigy, wrote this astounding philosophic work between the ages of 17-24, which officially flopped on the English market, but which moved Immanuel Kant with Kant’s Three Critiques toward a joint overturning of the philosophic world that Kant joined with Hume, and which Kant called the “Copernican Revolution of Philosophy”.)

Never forget: Ours is an old, very proud tradition, in the Spirit of the Age of Enlightenment (in German: die Aufklärung).

That was the age that promoted the end of feudalism, the end of torture, the end of religious discrimination (against the Jews), and independence from religion to a philosophy and political/economic philosophy based upon reason and empiricism.

That is our heritage; These are our core values.

And Robert Reich is a leader within this great movement. And not just any leader, but one of our best voices.

Here is where I disagree with him in the significance of events.

Robert Reich points out that LWF wrote an advocacy letter to the U.S. Chamber of Commerce on 23 August 1971, not long before Lewis Franklin Powell, Junior was appointed with consent of the Senate to Associate Justice of the Supreme Court.

Again, so far so good.

Robert Reich points out that LFP urged the U.S. Chamber of Commerce to supplement the normal profit-seeking focus of the American Free Enterprise with a large infrastructure of political and aggressive advocacy and the building of a large structure of Conservative influence.

That, so far, is a fair reading, indeed the correct reading of the LFP 1971 Memo that appears in its 35 page full-length here:

https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1000&context=powellmemo

I agree that LFP motivated the U.S. Chamber of Commerce to follow his prudent, aggressive political advice for advocacy and the building of a Conservative infrastructure.

I agree with Robert Reich that the Conservative movement has evolved from a fringe to later a mainstream of the American Polity.

But today’s Republicans are not LFP’s Conservatives!

I cannot agree with much that the Honorable Justice Franklin Powell, Jr. had written or advocated in his life.

Born in 1907 and a very prosperous lawyer from Richmond, Virginia, Mr. Powell admits that his reaction to Brown v. Board of Education, integrating the public schools, was shock.

Of course, even allowing for the spirit of the 1950s — and make no mistake, the 76-year-old Armando remembers very clearly especially from 1954 forward (my memories of 1950-1953 are there, but Armando was so little then) — even allowing for the spirit of those times, one would have hoped that a leading lawyer at the head of the Richmond bar — LFP had served as President of the American Bar Association and of the Association of Trial Lawyers of America — could we not expect that by 1954 such a leading and learned attorney would have welcomed Brown v. Board of Education?!

So, LFP had failed us in many respects.

But LFP’s court tenure from 1972 through his retirement in 1987 is characterized by a spirit of reconciliation and moderation.

In the leading case of Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), there is much I do not agree with in the opinion, but Associate Justice Lewis Franklin Powell, Jr., upheld, for the majority, the Constitutionality of Affirmative Action. While I wish that the Honorable Justice Powell had allowed wider scope for race as the leading factor in correcting wrongs and achieving diversity, Justice Powell did retain race as a factor, to be considered with others, in arriving at diversity.

This is not ideal.

But the opinion of Justice Powell is a very far cry from the fire-breathing Justices Samuel Alito and Clarence Thomas, not to speak of Justice Neil Gorsuch, who concurred in overturning Chevron, and thereby justified his own mother from 40 years ago!

Far from our opponent or a danger, it is the Conservatism of the Honorable Associate Justice Lewis Franklin Powell, Jr (1907-1998) that I wish prevailed in today’s Republican Party.

Justice Powell was a human with a lot of faults.

But Justice Powell reasoned and believed in the Democratic Process and promoted activism for big business within the legitimate processes.

When one reads the memo of Justice Powell, one should remember the backdrop of student protest and takeovers of the campus and the major unrest that Justice Powell was reacting to, and he advocated free speech and due process for his political adversaries, but he promoted actively a process of Big Business gearing up to work within the corporate world and the politico-economic-legal process to achieve change within the framework of the law.

I certainly oppose most of the objectives that big business would thereby achieve.

I am on the left with Elizabeth Warren and Bernie Sanders, so of course I wince at a lot of LFP’s political stances.

But today’s GOP is not in the spirit of Lewis Franklin Powell, Jr.

I really, really wish they were.

I would fight against that GOP and fight it with vigor.

The difference is, there would be joy in the fight.

There would be a fight with people who want solutions that I fundamentally disagree with and some of which I find harmful.

But it would be a debate with humanity, mutual respect, and a mutual acceptance of core Democratic values: Free speech; Free exchange of views; Due Process for All; and at least an acceptance (in my case an enthusiasm) for American Diversity.

For all of his faults, and they were many, the Honorable Associate Justice Lewis Franklin Powell, Jr., at least from his years on the U.S. Supreme Court, exemplified those values.

And I wish to God that today’s Republican Party were represented by Wall-Street economists and statesmen with LFP’s and my Core values.

We would not be here worried about an end to Western Democracy.

I am not a sentimental person. I am an old, cynical, jaded lawyer.

But I wish the other side would adopt the Spirit and advocacy of the statesman Lewis Franklin Powell, Jr.

What we face now in America is neo-fascism with its allies in Europe: Marine Le Pen with her Rassemblement National and in Germany through the Alternative für Deutschland (Alternative for Germany).

These are not in the spirit of LFP. These are repressive, dangerous, racist-nationalist forces.

Yesterday I heard a dear friend, Gloria Horton-Young — She who stirs the Storm! — as she asked if they would never learn from history!

Gloria: We must! And we will fight.

A dear friend, Lorraine Evanoff asks us to keep hope and fight for our core values.

I am more a follower. But, Lorraine, I joyfully join you in that spirit!