The Atlantic: The Other Memo That Started the Conservative Legal Movement
This excerpt is from a piece that originally ran on July 30, 2024.
It has become almost an article of faith among liberals: The Powell memo, an urgent call for American business and conservatives to battle for the courts, written by soon-to-be Supreme Court Justice Lewis Powell for the U.S. Chamber of Commerce in 1971, provided the right with its long-term road map to power. It’s proof of a massive right-wing conspiracy, evidence that the other side schemed and planned while their own complacently snoozed.
Powell certainly inspired Charles and David Koch and led the right’s leading donors into the fight. The courts, Powell’s memo presciently observed, provided “a vast area of opportunity” if “business is willing to provide the funds.” Then, after Richard Nixon named Powell to the bench, Powell delivered Big Business and the right wing a series of victories that unshackled wealthy donors, awarded First Amendment rights to corporations, helped curtail enforcement of the Voting Rights Act, and dramatically altered affirmative action.
Yet it took another memo to place conservatives on a different and more successful path that would alter the power dynamic in America forever. If you want to understand how the right captured the courts, how the conservative activist Leonard Leo became the most powerful man in the country, why the Federalist Society’s turnstile for conservative judges, lawyers, and professors came to exist, the place to start isn’t the Powell memo. It’s the Horowitz report, an almost completely unknown follow-up to Powell written by Michael J. Horowitz, a onetime liberal Democrat who turned to the other side. With the exception of a 1980s law-review article by Oliver Houck, an early-1990s report by the Alliance for Justice, and two tremendous academic books on the legal right from more than a decade ago by Ann Southworth and Steven M. Teles, it might not have been known at all.