The Supreme Court Tries to Overrule the Climate

A destructive decision in West Virginia v. E.P.A.

Credit where due: the Supreme Court’s 6–3 ruling in West Virginia v. E.P.A. is the culmination of a five-decade effort to make sure that the federal government won’t threaten the business status quo. Lewis Powell’s famous memo, written in 1971, before he joined the Supreme Court—between the enactment of a strong Clean Air Act and a strong Clean Water Act, each with huge popular support—called on “businessmen” to stand up to the tide of voices “from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians” calling for progressive change. He outlined a plan for slowly rebuilding the power of industrial élites, almost all the elements of which were taken up by conservative movements over subsequent years: monitoring textbooks and TV stations, attacking left-wing faculty at universities, even building a publishing industry. (“The news stands—at airports, drugstores, and elsewhere—are filled with paperback and pamphlets advocating everything from revolution to erotic free love. One finds almost no attractive, well-written paperbacks or pamphlets on ‘our side,’ ” Powell wrote, but he was able to imagine a day when the likes of Ann Coulter or Sean Hannity would reliably top the best-seller lists.)

Fatefully, he also wrote: “American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” At the time he was writing, the “activist” court was standing up for things that most Americans wanted, such as clean air and water—and the right of women to control their own bodies. But the Supreme Court, and hence the judiciary, has come under the control of the kind of men that Powell envisioned—he may not have envisioned women on the bench, but Amy Coney Barrett is otherwise his type of judge. And, with this ruling, they have taken more or less total control of Washington’s ability to generate policy that might disrupt the status quo…