Essay

How the Supreme Court Was Captured: The Forty-Year Project

The current Supreme Court majority did not arrive by accident. It was the planned outcome of a forty-year project funded by the same people who built the financial and legal architecture documented in the previous essays in this series. Here is the documented history of how it was done.

On August 23, 1971, two months before President Nixon nominated him to the Supreme Court, a corporate lawyer named Lewis Powell wrote a confidential memo to the United States Chamber of Commerce. It began: no thoughtful person can question that the American economic system is under broad attack. The attackers Powell named were not communists or foreign adversaries. They were the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and politicians. His memo was a strategic blueprint for how corporate capital should respond: fund think tanks, infiltrate university faculties, pressure media, build legal capacity, and use the courts as a weapon. The judiciary, Powell wrote, may be the most important instrument for social, economic, and political change.

That sentence was the blueprint for everything that followed. Lewis Powell was not speculating about the judiciary’s potential. He was announcing a project. Within fifty years, six of nine Supreme Court justices would be members or affiliates of an organization that did not exist when he wrote those words, funded by the same donors the Powell Memo mobilized, executing the exact strategy he described.

The infrastructure that was built

The Powell Memo was not a wish list. It was executed with remarkable fidelity. Corporate lobbying offices in Washington quintupled between 1968 and 1978, from 100 to over 500. The Heritage Foundation was founded in 1973. The Cato Institute in 1977. The American Legislative Exchange Council, ALEC, in 1973. The Business Roundtable, which became the most powerful corporate lobbying organization in American history, was formalized in 1972. Every institution Powell called for was built within a decade of his writing, funded by the same network of foundations: the John M. Olin Foundation, the Scaife foundations, the Bradley Foundation, and the Koch family.

The legal arm was the last piece and the most consequential. On April 23, 1982, eleven years after Powell’s memo, the Federalist Society was founded at Yale Law School. Its initial funding was $24,000 from the John M. Olin Foundation. It grew into a professional network of 42,000 right-leaning lawyers, with 150 law school campus chapters, funded by Olin, Scaife, Bradley, and Koch money. In 2003, the Olin Foundation wrote to its trustees that the Federalist Society had been one of the best investments the foundation ever made. The investment was not in legal scholarship. It was in the capture of the judiciary that Lewis Powell had identified as the highest-leverage target in 1971.

The doctrine that was manufactured

The Federalist Society needed a legal doctrine to organize around. It chose originalism, the idea that the Constitution should be interpreted according to the original intent of its framers. The doctrine had an air of principled restraint. It was in fact a strategic choice. Legal scholars Steven Calabresi and Gary Lawson, themselves sympathetic to the originalist project, later documented that originalism was, before 1985, essentially unknown to the legal academy and almost wholly absent from the judicial process. Originalism was not recovered from the founding era. It was manufactured in the years between Powell’s memo and Reagan’s election.

On July 9, 1985, Reagan’s Attorney General Edwin Meese delivered the doctrine’s founding declaration to the American Bar Association. He called for a jurisprudence of original intention and defined its target explicitly: the Warren Court’s expansions of civil liberties and civil rights. The Warren Court had desegregated public schools, guaranteed equal voting representation, and protected contraception. Meese was announcing a legal project to reverse those outcomes, dressed in the language of constitutional fidelity. The Federalist Society was the institutional vehicle. Originalism was the tool. The target was any legal doctrine that constrained corporate power or protected the people corporations treated as costs.

The pipeline

The mechanism for translating the doctrine into judicial outcomes was a man named Leonard Leo. He joined the Federalist Society after graduating from Cornell, spent decades identifying funding sources, and built donor relationships with the Koch Family Foundation and the Scaife Foundation. His project was a pipeline: law school chapters to federal clerkships to circuit court appointments to the Supreme Court. Leo founded the 85 Fund, which channels dark money to conservative causes. He became the de facto personnel director for Republican Supreme Court nominations. During the George W. Bush administration, the Federalist Society quietly became, in the words of one observer, the big donors’ nominations turnstile.

The turnstile produced Clarence Thomas, Samuel Alito, John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all Federalist Society members or affiliates. In 2016, Donald Trump made the relationship explicit. His judicial nominees, he promised publicly, would all be picked by the Federalist Society. He kept the promise. By 2024, six of nine Supreme Court justices were members or affiliates of the organization. The court that decides what the Constitution means, what corporations can do, what elections can cost, and what rights individuals hold against institutional power, is a court built by the donors, through the pipeline, to deliver the outcomes the Powell Memo called for in 1971.

What the court delivered

Citizens United in 2010 allowed unlimited corporate spending in elections. Hobby Lobby in 2014 extended religious freedom rights to corporations. Janus v. AFSCME in 2018 defunded public sector unions. Dobbs in 2022 reversed fifty years of established precedent on reproductive rights. In 2024, the court granted presidents broad immunity from criminal prosecution for official acts, a doctrine with no historical basis that legal scholars across the political spectrum described as invented. Each decision advanced the agenda that the Powell infrastructure had been building toward for decades. Each was delivered by justices placed on the court through the pipeline that Powell’s memo initiated and Leo’s network executed.

The doctrinal seeding strategy runs through all of it. A justice writes language in an opinion in an unrelated case, not necessary to decide that case, but available to be cited as precedent in a future one. The language sits in the record. Years later, a case arrives that was structured specifically to activate it. The justices writing the seed opinions and the justices deciding the cases that harvest them share the same doctrinal framework. They attended the same conferences. They were vetted by the same organization. This is not conspiracy in the sense of secret coordination. It is the more powerful thing: a shared doctrine, a shared network, and a shared decades-long commitment to the same strategic goals, operating through the normal mechanisms of law.

What this means for the legal challenge

The previous essay in this series documented that corporate constitutional personhood rests on a headnote, a prefatory summary with no legal force, written by a former railroad executive in 1886. The question of whether corporations deserved constitutional rights was never formally decided by any court. The headnote was cited as precedent by subsequent courts. The error compounded into doctrine. The legal argument for dismantling corporate personhood is therefore not primarily a political argument. It is a historical and procedural one: the foundational precedent was never a precedent. A court examining the record honestly would find that 140 years of constitutional rights for corporations rest on a clerical note that was never supposed to have legal force.

The reason that argument has not been made before the Supreme Court is now documented in this essay. The court that would hear it was built by the people who benefit from the doctrine it would challenge. The same network that placed the current majority on the court funds the organizations that would oppose such a challenge. The legal argument exists. The historical record that supports it is primary source material available to anyone. What does not yet exist is a court constituted to hear it fairly.

That is not a call to vote differently. Elections have been part of the capture too. The same donor network that built the judicial pipeline funds the voter suppression infrastructure, the gerrymandering coordination through ALEC, and the dark money that shapes which candidates are viable before a single ballot is cast. Voting in a system this thoroughly designed is necessary but not sufficient. It was never going to be enough on its own, which is precisely why the people who built this system made sure it would not be.

What the documented record of this project makes clear is that the system was not inevitable. It was built. Specific people made specific decisions at specific moments, with documented funding, toward documented goals. None of it was natural. None of it was the neutral operation of law or markets or democracy. It was chosen, and it was chosen deliberately, by people who understood exactly what they were building. That understanding cuts both ways. A system built by human decisions can be understood by the people living inside it. Most of them have never been told what they are living inside. That is what this series is for.