The Other Memo That Started the Conservative Legal Movement
16 min read
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.
Lisa Graves, the founder of True North Research and a former chief counsel of the Senate Judiciary Committee, has tracked the roots of the conservative legal movement’s funding more closely than anyone. “The Powell memo set forth a blueprint for CEOs to invest in efforts to infuse free-market fundamentalism into key institutions, including the courts, to try to counter gains made by consumer rights and environmental advocates. It influenced wealthy scions of the Coors and Koch fortunes to invest more in such efforts, with Koch criticizing the Powell memo for not going far enough to put strings on investments in universities, for example,” she told me. “But the influence of a memo by Michael Horowitz that was circulated a few years after the Powell memo has been underappreciated for its profound effect on helping to create generations of legally trained zealots devoted to a reactionary program to fundamentally change American law.”
Where Powell’s memo laid out a master plan to claim political power through economic might and cultural warfare, Horowitz, writing nearly a decade later, took a more subtle approach. He pointed out that the right couldn’t just photocopy institutions built on the left. It needed committed young foot soldiers who believed in the cause—to recalibrate its goals from raw power to real ideas, and shift the battleground from courtrooms to campuses.
The Horowitz report of 1980, commissioned by the powerful, conservative Scaife Foundation the year before, delivered a damning message: The entire right-wing offensive on the court system needed to be rethought. The right’s legal brainpower was “appallingly mediocre.” They needed to reach the next generation where their journey began, in law school, and from there they could pursue a two-pronged strategy: First, develop the people who would become influential advocates and judges and launch their careers, and then develop the ideas, policy goals, and ideologies that would guide their work fighting against executive power, activist liberal courts, the federal bureaucracy, corporate regulations, and supposedly lax attitudes toward crime and “ghetto disorder.”
“Young men and women are tired, as is everybody, of the old answers,” Horowitz declared in a companion paper. His brief quickly moved beyond its funders at Scaife and captured the attention of donors throughout the right. “Yet nobody has sufficiently offered young lawyers the sense that one can be moral, intellectual, appropriately ideological, while at the same time being radically opposed to the stale views of the left.”
If Powell wanted the American right to engage in full-throated warfare while using the courts as a shortcut around American elections, Horowitz argued that there was little point in contesting the courts until a new generation of lawyers and thinkers could be cultivated, trained, and hired.
“What is at stake … is not so much a battle over cases won and lost as of ideas and ideologies,” Horowitz wrote. The “critical focus” must be “the law schools and bar associations.” Too many on the right, Horowitz suggested, had “little feel for the longer range potential of the movement on the legal process and as an instrument to capture youthful loyalties and to redefine what is moral in law.”
His report would echo throughout Washington, instruct the hiring practices of Ronald Reagan’s new administration (especially at the Department of Justice), and ripple across growing conservative circles within American law schools. It would pave the way to incubating right-wing ideas on college campuses and then serve as the gateway through which conservative bona fides would be checked for GOP administrations and appointments to state and federal courts.
Perhaps most crucially, the conclusions Horowitz drew would lead him to help a handful of young law students launch the Federalist Society. “Targets of opportunity abound” for the conservative movement, he wrote, “if such young attorneys can be recruited and, with proper training and leadership, can be given the chance to make their marks.” Horowitz’s influence and credibility with the right wing’s biggest funders grabbed the attention of grant makers and unlocked the vaults.
According to John Miller, the biographer of the wealthy conservative donor John Olin, Horowitz “produced a devastating critique that influenced conservative grant making for years.” Scaife immediately shared the report with Olin and many of the conservative network’s philanthropic allies. Four decades later, their power is now reshaping every aspect of American law, and is likely to do so for generations to come.
Michael J. Horowitz’s rightward odyssey feels personal and cultural, producing political consequences as something of a side effect. Horowitz was born in New York in 1940 and grew up in the West Bronx, uptown from the Lower East Side sweatshops and streets where his grandfather found work as a tailor after arriving in New York at age 12. Most of his relatives who stayed behind in Europe died during the war, but America, blessed America, vanquished Adolf Hitler. Horowitz’s upbringing was equal parts Jewish and American: yeshiva, City College, college summers working on the railroad in Alaska, basic training in the Marine Corps, and, finally, Yale Law School. When the gates of the Ivy League swung open, Horowitz was admitted to that world without really being of it. Its aura of luxury and privilege, coupled with the reflexive contempt his classmates displayed for ordinary working-class Americans, grated and gnawed. But he was still swaddled in liberalism; at Yale Law, his classmates included Gary Hart, Eleanor Holmes Norton, Marian Wright Edelman, Robert Rubin, and Jerry Brown—all of whom would go on to become significant Democratic and progressive leaders and politicians.
“This is a remarkable class, but these are my friends,” Horowitz told me in the fall of 2022. He’s now in his mid-80s, and was newly divorced at the time. On the afternoon we spent together in Connecticut, he occasionally paused our conversation to check his messages on Jdate. His vote for Donald Trump in 2016 has made it frustratingly hard for Horowitz to move from messages to actual dates. He’s stared down that peer pressure for decades. “I come from that world. I know that world. They just … they don’t really know … My values were middle-class values. I was rooted in that world and saw its virtues in a way my Ivy League classmates never could.”
After graduation from law school, Horowitz spent a dull year on Wall Street, trying to make some money like other Yalies. But he soon grew restless, entranced by the breakthroughs won in the civil-rights movement. So he became a law professor at the University of Mississippi. He taught some of the first integrated classes at Ole Miss, forcing students to sit alphabetically so whites could not ostracize their Black classmates. But later, back in New York, his feelings of cultural estrangement reappeared. As an independent attorney, he represented New York firefighters and police officers and other city employees in their fight against affirmative action. To Horowitz, the city’s programs felt like quota systems, designed to punish middle-class achievers. People like him.
Horowitz made a hard pivot. He had never felt accepted or understood by the left, not in college, not on Wall Street, not as a young lawyer. And so, as in many other cases, personal pique and class resentment pushed him toward the right, leaving him with a lifelong grudge and a determination to even the score. There was, Horowitz told me, “a cultural battle, a battle for moral supremacy, and a need to end this moral monopoly.” The people placed on the “bad side of that moral ledger,” he said, were “not able to fight, or did not know how to fight.”
Horowitz knew how to fight, and he was ready to teach the right how to do so, too.
As the 1970s pushed to a close, Gary Hart had chaired George McGovern’s presidential campaign and been elected to the U.S. Senate. Jerry Brown succeeded Ronald Reagan as the governor of California. Marian Wright Edelman helped organize the Southern Christian Leadership Conference and founded the Children’s Defense Fund. Robert Rubin was on his way to heading Goldman Sachs and would later become Bill Clinton’s treasury secretary. But Horowitz believed that his most powerful and influential classmate was Charles Halpern.
Halpern, the founder of the Center for Law and Social Policy, one of Washington’s first public- interest law firms, wasn’t a household name. Still, he made headlines and altered public policy. Halpern leveraged the social and political agenda of 1960s activists into a potent legal and regulatory playbook, scoring key victories for the burgeoning field of public-interest law. In spring 1979 he celebrated the movement’s 19th anniversary with a conference at Yale Law. Horowitz, still a lawyer in private practice in New York, decided to attend. What he heard horrified and inspired him.
“It was this grand fellowship of God’s chosen,” he says now. Horowitz believed that the chummy
gathering confirmed all his hard-won insights about the hypocrisies of the left and the rampant collusion among activists, government agencies, and the courts. At the same time, he realized that his side had to fight the same way—in Washington, from a moral high ground, based on a theory of justice that attracted people to the cause. The Powell memo led conservative foundations to dump tens of millions in a failed effort to create a conservative public-interest movement. The right had tried to copy the left without studying it first.
“All these appointees of the Carter administration were there. Some of them were general counsels of agencies. Others were public-interest litigators. They would joke about cutting corners, because after all, it was for the public good that they were in business,” he told me. “These general counsels would get up and say in front of everyone, ‘My door is always open to the Environmental Defense Fund. We plot and we scheme.’” Horowitz suddenly saw a key way that the left advanced its policy desires: Activists made demands on agencies and threatened lawsuits under new rules and regulations, while friendly agencies provided what support they could. At the end of the process, sympathetic judges awarded ever greater and higher profile victories. Horowitz “thought that was a wonderful model—and not at all what conservatives had even considered.”
To Horowitz, it looked as if the left had unlocked a secret inside game that it could not lose. They were proud of it! In his report, Horowitz quoted from the keynote speech delivered by the Harvard Law professor Abram Chayes. “I think all of us know that there is an ideological element in public-interest law, and thank goodness there is,” Chayes said, as reported by Horowitz. “This is not a neutral enterprise. We are for social change. We are for social change in a particular direction.”
They’d built themselves an iron triangle: government agencies, the courts, and outside “public interest” organizations. All three sides were hired from the same pool of do-gooders, then promoted like-minded allies from one group to another. The courts, the litigants, the government officials—they were teammates. Horowitz watched them all admit it, with growing incredulousness but also jealousy.
“A movement comprised of small numbers of people can influence national policy when policy is essentially fixed at one place and by a small group of decision makers against whom pressure can be applied,” Horowitz wrote in his report, and one can imagine Leonard Leo nodding along. “One example of the traditional movement’s concern with matters beyond litigations,” Horowitz continued, “is the recent success which it has achieved in the area of judicial appointments.”
This was what Republicans needed to replicate. His ticket to acceptance with his new team would be to bring them this powerful idea. It would fuel the right’s gameplay on voting rights and elections for decades to come, as they built their own triangle within the Federalist Society, the courts, and conservative litigants and foundations.
When Horowitz got back to New York, he called Richard Larry, the executive director of the Scaife Foundation. The two had never spoken before. Larry told Horowitz that no one had ever just picked up the phone and pitched him on a grant. But as Horowitz kept talking, Larry realized he was onto something big. “In general, there was a sense that the foundations had not gotten their money’s worth,” says Michael Greve, then a young program officer at the conservative Smith Richardson Foundation (founded by the heirs of the Vicks VapoRub fortune), who would become a major player within the conservative public-interest movement himself and later a professor at George Mason’s Scalia Law School. “There had for a long time been a lot of dissatisfaction.”
Horowitz’s cold call paid off: Scaife wrote the check. “It didn’t make me rich, but it gave me the ability to devote all my time to it. And I got into it,” Horowitz told me. “Here was Charlie, placing the Supreme Court law clerks, hiring the best and brightest young people, who felt morally fulfilled and charged to do the right thing—and they were kicking the pants off the system! Charlie Halpern and Ralph Nader, just look at what they were doing!
“It was such a learning experience just sitting there. Then I saw what the conservatives were doing. They were effectively just writing amicus briefs, having no effect, focusing on litigation rather than regulations.” That was the Powell memo in action, and it “didn’t affect what was happening in Washington at all. It was a waste of money. It was a waste of time.”
Horowitz’s message to the right was that they’d built the wrong infrastructure.
Mountains of cash produced an avalanche of business-friendly amicus briefs; program officers could weigh them to justify the work in reports to the movement’s donor base, but these were exercises in paper pushing. They certainly didn’t add up to any kind of movement to
alter the law. If anything, the public-interest push to generate right-wing legal reform turned off potential recruits and allies. “All too often, conservative public interest law firms serve as mere conduits by which monies contributed by businesses and foundations are given to private law firms to assist it in the prosecution of its cases,” Horowitz wrote in his report. “No practice presently engaged in by conservative public interest law firms is more inappropriate.”
What Horowitz saw as the conservatives’ surrender of the center of legal and regulatory power could be fixed by redressing its woeful strategic disadvantages on campus and in the broader battle of ideas. Here, too, “Charlie was doing it right,” Horowitz told me. Halpern and Nader placed their efforts “on a higher moral plane than those of [their] adversaries and [had] thus engaged the loyalties of young attorneys” as well as the news media, he wrote in the report. Conservatives didn’t bother to compete in this arena at all. As a result, “the conservative public interest law movement will at best achieve episodic tactical victories, which will be dwarfed by social change in the infinite number of areas beyond its case agendas.”
Horowitz suggested building from the bottom up, beginning with the nation’s law schools. Halpern and Nader nabbed bright, idealistic law students and trained them to follow their sense of justice and morality toward Democrats and the left. The pipeline between elite law schools and coveted clerkships and jobs flowed leftward. The new right’s intellectual energy counted for virtually nothing in such crucial career-shaping networking and job-placement efforts.
The movement has “had essentially no impact on the still-prevailing notions of law students and young attorneys,” Horowitz bemoaned, because its leaders “have neither the background nor capacity to attract and train first-rate young lawyers, or to build permanent relationships with law schools and bar associations.” Horowitz dismissed the brainpower of staff attorneys and conservative lawyers at these firms as “appallingly mediocre.” If conservatives wanted to win converts, they needed to nurture their own intellectuals and their own incentive structure.
“The very decline in power of the American business community over the last decade, and the corresponding growth of a government-growth oriented anti-business, traditional public interest movement is perhaps the best evidence that the skills in the business community are not well correlated with the skills involved in generating idealism and enlisting the intellectual loyalties of bright young men and women,” he wrote in his report. Only such a forceful rebranding of the right’s legal and intellectual agenda, and the “fellowship of like-minded people with whom to share ideas, debate principles and from and with whom real teaching and learning can take place,” Horowitz wrote, “would … be useful for attracting idealistic young lawyers.”
As Horowitz wrote his report, several of those young soon-to-be law students moved into a group home just outside Washington and began internships on Capitol Hill and elsewhere. The Horowitz report would be crucial in helping them found—and fund—something they would soon name the Federalist Society.
“That’s exactly right,” J. Michael Luttig, a former federal judge, told me. “Michael [Horowitz] had the intellectual vision surrounding all the various pieces of a conservative legal movement that was about to take off.”
To fully grasp the Horowitz report’s thunderclap effect on conservative funders and the broader movement, consider this: When Horowitz sent his conclusions to the Scaife Foundation, he was a little-known lawyer in New York. Little more than a year later, in January 1981, when Reagan took office, Horowitz had a prime White House perch as one of those general counsels himself—not just at any agency, but at the most powerful and wide-ranging position of them all, the Office of Management and Budget.
The report “certainly helped everything,” Greve told me. “Foundation officers needed somebody else—a voice of respectability—to say it’s not just us thinking this, we’re not crazy.”
“Before Mike’s report, a few people had that view but they didn’t have the vehicles to push their ideas,” former Attorney General Edwin Meese, who would staff the Reagan Justice Department with young Federalist Society strivers, told me. “The Horowitz report—and very soon after that the Federalist Society—provided that opportunity.”
The Federalist Society co-founder Lee Liberman Otis remembers that Horowitz “found” them almost immediately after the society started in 1982. “I called up funders early in the game and said, give money to the Federalist Society,” Horowitz told me. “I did that. That’s absolutely right. Absolutely.”
Horowitz all but demanded that the right’s leading foundations act. “Scaife Foundation is to be commended for its active support of the movement, although that support must clearly be increased,” he wrote, “if, as is surely the case, the directors of Scaife are interested in effecting fundamental change.” Other foundations, he wrote, including Olin and Smith Richardson, “have a striking, present responsibility and opportunity to substantially increase and in some cases initiate support for the conservative public interest law movement, under circumstances where dollars invested … can yield remarkably high dividends.”
Part general counsel and part movement talent scout, Horowitz identified the young students clerking for Robert Bork and other conservative judges and invited them over to the OMB for lunch, to plot out their careers. “It was just a handful of us, and a handful of funders,” Horowitz told me. “They understood that by funding a few students, a few writers, a few chairs … they could make a huge difference.”
Horowitz shared Yale ties with the Federalist Society’s founders, and as the group launched, Horowitz promptly contacted them with ideas and connections he wanted to share, both inside the new administration and with foundations. “He made the introductions and put us in touch with the foundation people,” Liberman Otis told me. Many of them, she said, “seemed to have adopted and internalized his views. He knew everybody. He understood the power of friendships. One really big insight he had is that the ideas come first.”
Greve awarded the Federalist Society a Smith Richardson grant that, he told me, “I know was one of the very, very first meaningful grants that the Federalist Society received.” James Piereson of the Olin Foundation, later the vice chairman of the conservative consortium DonorsTrust, told Noah Feldman for his audiobook Takeover that he remembers Liberman Otis and the other founders coming to visit in 1982. Piereson had read Horowitz’s report and fully absorbed its central message: that the federal courts were the prime testing ground for a resurgent right-wing intellectual and legal movement. Olin wrote a sizable check.
In turn, “it’s not clear whether we would have existed without Olin’s support,” Eugene Meyer, the society’s president and co-founder, told The New York Times when the foundation closed its doors in 2005.
The Federalist Society, Horowitz said, “became the model we countered Charlie [Halpern]’s public-interest groups with” and how “[we] tried to shatter the caricature of who we are.”
Today’s Federalist Society firebrands have reshaped American democracy through the courts, and masterminded the dramatic transfer of power away from the people and toward gerrymandered legislatures and rabidly ideological judges. They could rightly be called the sons and daughters of Michael J. Horowitz.
This article has been adapted from David Daley’s new book, Antidemocratic.
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