In a long, detailed article, Slate reports about racist letters and memos that former supreme court justice Lewis Powell (1907-1998) wrote:
There’s a New Lewis Powell Memo, and It’s Wildly Racist
Now never-before-seen letters and memos show that behind the scenes at the court, Justice Lewis Powell, an influential jurist with an undeserved reputation for decency and moderation, used wildly racist code words on the court’s letterhead as he strenuously—and successfully—drove a decision in City of Mobile v. Bolden four years later that would overturn the lower court and reinstate a system that reliably produced all-white rule.
Should his side not prevail, and should districts replace at-large systems nationwide, Powell warned Justice Potter Stewart in a barely coded racist letter from Feb. 28, 1980, “our cities could become jungles.”
It is startling, even horrifying, to turn the pages of an archival folder in a beautiful Yale research library and come across such incendiary and racist language on official Supreme Court letterhead and dated during one’s own lifetime. What’s perhaps more horrifying is that Powell’s thinking in the Mobile case shaped a young John Roberts, who would years later become the chief justice of the United States and defined the early chapters of Roberts’ lifelong efforts to unravel voting rights from the bench.
When Powell died in 1998, the New York Times memorialized the distinguished jurist as a “balancer and compromiser,” a “political moderate” who disdained “heated rhetoric and doctrinal rigidity.” Time magazine mourned the loss of someone it had praised as the “marble palace’s Southern gentleman,” and the Los Angeles Times praised the “middle-road course” of this “uncommonly sweet, gentle and courteous man,” who, it suggested, served the nation only from a sense of civic patriotism. They all got Powell dangerously wrong.
None of these obituaries mentioned the Powell memo, his manifesto for the Chamber of Commerce that exhorted big business into the culture wars and the battle to capture the judiciary, long viewed on the left as the right’s road map for spreading free-market fundamentalism into the courts. “Political power is necessary,” Powell insisted, in a memo that inspired the Koch brothers and the right-wing foundations that helped build the Heritage Foundation and new intellectual infrastructure on the right. “It must be used aggressively and with determination.” They also skipped over his many speeches during the 1960s denouncing and mocking Rev. Martin Luther King Jr. (“a prophet of civil disobedience”) and his “Letter from Birmingham Jail” (“heresy,” an invitation to “totalitarian rule.”)
The appreciations also airbrushed a lifetime of more genteel racism. Powell had been a pillar of Richmond society, educated in all-white schools, a member of its all-white social clubs and churches, and the founding partner of a law firm that would not hire Black attorneys. His biographer, John C. Jeffries Jr., notes that he “never met a Black as an equal.” Racial segregation remained so commonplace in Richmond, the former capital of the Confederacy, into the 1960s that Powell later conceded, “It never occurred to me to question it.” When the U.S. Supreme Court desegregated the nation’s schools in Brown v. Board of Education and called for integration “with all deliberate speed,” Powell, then the chairman of the Richmond school board, described his reaction as “shock.” In letters to colleagues and friends, he maintained that “the school decisions were wrongly decided,” misguided not only as a matter of law but as social policy as well.
Alabama established its at-large elections in 1911, not long after the state adopted its new 1901 constitution with the stated goal to “establish white supremacy in this State … by law—not by force or fraud.” The new setup worked beautifully—so much so that some residents, let alone jurists like Lewis Powell, forgot the original intent of at-large elections altogether; it faded into the past, another taken-for-granted feature of a bitterly unjust social order, rooted in the nation’s original sin. Yet if time clouded anyone’s memory of how white supremacy took deep structural root in the city’s modern life, a visit to the public library would clarify things. There you’d find a written confession from Frederick Bromberg, a state senator who in a 1909 letter to the editor made it clear that the purpose of at-large elections had always been to eradicate the possibility of Black voting power. “We have always, as you know, falsely pretended that our main purpose was to exclude the ignorant vote when, in fact, we were trying to exclude not the ignorant vote, but the Negro vote,” he wrote.[1]
In the 1950s, Powell would slow-walk the Thurgood Marshall–won Brown decision. A quarter century later, he’d battle Marshall on the bench. Powell quite strategically shifted the question in the Mobile case. Instead of a totality of evidence, Powell and Stewart would ask whether historic racism and systemic inequality played a part in creating Mobile’s all-white power structure. Did Mobile mean to keep Black residents out of power? Or did it simply work out that way, even once Black people had the same opportunity to vote as whites? The answer appeared undeniable, unless one closed their eyes, blinded by the rhetoric of color blindness.
Once again, the mainstream media is America's great illusion machine. In this case, it grossly mischaracterized a powerful person with toxic politics.
Footnotes:
1. A 1907 letter from Alabama state senator Frederick Bromberg to Alabama governor Braxton B. Comer:
Highlighted text: We have always, as you know, falsely pretended that our main purpose was to exclude the ignorant vote when, in fact, we were trying to exclude, not the ignorant vote; but the negro vote.
One has to wonder how much racist sentiment there still is in American society and the authoritarian Republican Party in particular. Powell influenced chief justice John Roberts into opposing elections. There are increasing warnings that the corrupt dictator DJT and his authoritarian Republican Party are currently engaged in lawsuits to discredit the 2024 primary and general elections. Roberts has been openly hostile to voting rights in his decisions.[2] When that is coupled with the sources of racism and anti-democratic sentiment from Powell to Roberts, there is a deadly serious attack on democracy and 2024 elections underway already.
2. Some evidence of Roberts' hostility to voting rights:
Shelby County v. Holder (2013): This decision was authored by Roberts. It invalidated a key provision of the Voting Rights Act of 1965, which required certain jurisdictions with histories of racial discrimination to obtain federal approval before changing voting laws. This ruling effectively weakened federal oversight and has been criticized for enabling voter suppression tactics. Since them racial gerrymandering has expanded in red states, especially in the South.
Long-standing Skepticism: Roberts's skepticism towards expansive federal voting rights protections dates back to his early career. In the 1980s, he opposed strengthening the Voting Rights Act, viewing it as constitutionally suspect. So Roberts sees voting rights as suspect.
Recent Decision: Roberts occasionally took an unexpected position on voting rights. But given his track record, that can be seen as a cynical misdirection from his long-term goal of weakening voter power in elections. In a recent 2023 decision involving Alabama's congressional districting (Allen v. Milligan), Roberts sided with liberal justices to uphold a key part of the Voting Rights Act, ensuring that district maps do not dilute the voting power of Black citizens. This decision was unexpected given his previous rulings. One source commented, the Chief justice’s opinion shocked observers of his 40-year assault on the Voting Rights Act, but it may not mean a change of heart. (as far as I know, Alabama is still resisting compliance with this court ruling, indicating significant racism sentiment there)
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