Lewis F. Powell Jr., Who Became the Quiet Centrist of the Supreme Court, Is Dead at 90
New York Times,
August 26, 1998
229 W. 43rd Street, New York, NY 10036
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By Linda Greenhouse
WASHINGTON — Lewis F. Powell, Jr., the retired Supreme Court
justice who brought a voice of moderation and civility to an increasingly polarized court
during his 15-year tenure, died Tuesday at the age of 90. An announcement from the court
reported that Powell, who retired 11 years ago and had been in failing health, died of
pneumonia at his home in Richmond, Va.
Powell was one of the country’s most prominent corporate lawyers, with practical
legal skills polished by decades of experience, when his nomination to the court by
President Nixon in 1972 gave him an unexpected second career. He was 64 years old, an age
at which he said he had expected to start "tapering off," when he took the seat
made vacant by the retirement of Associate Justice Hugo Black.
His role on the court eventually became so central to the institution’s
ideological balance that his retirement in 1987 unleashed a furious political battle over
the nomination of the prominent conservative President Reagan named to replace him, Robert
Bork. The nomination was defeated and the seat eventually went to the more moderate
Anthony Kennedy.
First in his native Virginia and then on the national scene, Powell had long since
reached the highest ranks of the legal profession. He had been president of three major
legal organizations, the American Bar Association, the American Bar Foundation and the
American College of Trial Lawyers. He was a senior partner of one of Virginia’s
oldest law firms, a trustee and general counsel of Colonial Williamsburg and a director of
11 major corporations.
Born into the insularity and rigid stratifications of the post- Reconstruction South,
Powell cherished his roots in Richmond and at the same time transcended them. From a young
age, he was drawn to the wider world while maintaining his ties to home. His long life in
some respects mirrored the journey of the modern South from the country’s fringe to
its mainstream. He described his initial response to the Supreme Court’s ruling in
Brown vs. Board of Education, the 1954 decision that segregation in the public schools was
unconstitutional, as one of shock. Yet as a Virginia civic leader and later as a Supreme
Court justice, he stood for moderation and consensus- building on matters of race.
He played a key role on a court that was marked by sharp ideological divisions. He was
the balancer and compromiser, a political moderate with an aversion to heated rhetoric and
doctrinal rigidity. Neither his colleagues nor lawyers practicing before the court could
take his vote for granted. He had to be persuaded by the weight of argument, and his vote
was frequently the decisive one, whether the subject was state aid to parochial schools,
remedies for racial discrimination or the rights of illegal aliens.
The most important opinion of his Supreme Court tenure was probably one in which he
wrote only for himself. In the Bakke case, a landmark affirmative action decision in 1978,
he bridged two competing four-justice blocs to extract a holding that barred the use of
rigid racial quotas but permitted race to be taken into account in university admissions.
He never lost either his acute sense of the court’s great power or his conviction
that the power had to be used sparingly. For him, judicial restraint was crucial to
keeping the balance of power among the three branches of government.
A concurring opinion he wrote in a 1974 decision, holding that a taxpayer could not
bring a suit challenging the way the Central Intelligence Agency was financed, expressed
as clearly as anything else Powell’s vision of the role of the court.
"We should be ever mindful," he wrote in United States vs. Richardson,
"of the contradictions that would arise if a democracy were to permit general
oversight of the elected branches of government by a nonrepresentative, and in large
measure, insulated judicial branch."
"Repeated and essentially head-on confrontations between the life-tenured branch
and the representative branches of government will not, in the long run, be beneficial to
either," he said. "The public confidence essential to the former and the
vitality critical to the latter may well erode if we do not exercise self-restraint in the
utilization of our power."
On the other hand, Powell did not hesitate to place the court’s weight on the side
of those who had nowhere else to turn. In 1982, he joined the court’s liberal bloc in
providing the crucial fifth vote for a decision requiring Texas to give a free public
education to the children of illegal aliens.
"I am not unmindful of what must be the exasperation of responsible citizens and
government authorities" over the influx of illegal aliens, he wrote in concurring
with the majority opinion in Plyler vs. Doe. But the fact remained, he said, that
"innocent" children were being denied an education solely because of their
parents’ illegal status, and were thereby "singled out for a lifelong penalty
and stigma." He said that "it can hardly be argued rationally that anyone
benefits from the creation within our borders of a subclass of illiterate persons."
If in his professional career Lewis Powell seemed to epitomize the legal establishment,
his courtly demeanor and soft Tidewater drawl made him the image of the classic Southern
gentleman. Almost ascetically thin, he was so unassuming that he often appeared to melt
into the background. In crepe-soled shoes, he strolled the court’s corridors and
grounds unrecognized by tourists.
His questions from the bench during oral argument were few and were posed in a voice
barely above a whisper. But they were precise and potentially devastating to the argument
of any lawyer who did not have the answer. His soft manner did not hide the quick and
tough mind that had served him both as a lawyer and as head of the Richmond school board
in the 1950s, a troubled decade during which he argued successfully against the
"massive resistance" campaign that some white city leaders advocated in defiance
of the Supreme Court’s desegregation mandates.
According to his biographer, Prof. John Jeffries, Jr. of the University of Virginia Law
School, a burning ambition and desire to excel drove Powell as a young lawyer into
positions of leadership in his law firm, his profession, and his community; ability to win
the confidence of clients and colleagues made his success possible.
Lewis Franklin Powell, Jr. was born in Suffolk, Va., on Sept. 19, 1907 into a family
with deep roots in the region. One of his father’s relatives, although not a direct
ancestor, was Nathaniel Powell, one of the original Jamestown settlers and for a time the
colony’s acting governor. Powell’s mother, Mary Lewis Gwathmey, was raised on a
Virginia plantation by an uncle who had accompanied Gen. Robert E. Lee to the surrender of
the Confederate forces at Appomatox.
The family’s proud history was no guarantee of lasting prosperity. Powell’s
father, raised on a modest farm with little formal education, finally achieved a hard-won
financial security as manager of a Richmond company that manufactured boxes and furniture.
Lewis Jr. was the oldest of four children. Growing up in a near-rural area of Richmond
known as Forest Hill, he attended a local private academy that aimed at preparing boys for
the University of Virginia. But he engaged in a gentle form of rebellion and struck out
instead for Washington and Lee University in Lexington, Va., where he achieved both
academic and social success and began to expand his horizons.
As president of the student body, he attended a student leadership conference in
California and met Edward R. Murrow, a student leader from the state of Washington. The
young Southerner and the future television journalist became close friends, travelling in
Europe together after a student conference in Brussels in 1930 and visiting together again
in London during World War II.
Powell was elected to Phi Beta Kappa and received his undergraduate degree in 1929 with
a major in commerce. By counting some undergraduate courses toward a law degree, he was
able to graduate two years later from Washington and Lee’s law school, where he was
first in his class. Throughout his life, he kept strong ties to Washington and Lee, to
which he gave his personal and Supreme Court papers, now housed in the Lewis F. Powell,
Jr. Archives on the Lexington, Va. campus.
After law school, Powell ventured north and earned a graduate law degree from Harvard
Law School. One of his classes was an administrative law seminar taught by Felix
Frankfurter, who later served on the Supreme Court and who impressed the young lawyer with
a pragmatic approach to legal issues that was very different from the more formal and
unskeptical approach of the professors at Washington and Lee.
After turning down an offer of a job at a prestigious Wall Street law firm, Davis, Polk
& Wardwell, Powell returned to Richmond in 1932, moved back with his parents, and
began his legal career as an associate in a small firm. Soon he moved to a bigger firm and
by 1938 had become its 10th partner. Except for his service during World War II, he stayed
at that firm, known for many years as Hunton, Williams, Gay, Powell & Gibson, until he
took his seat on the Supreme Court. He played a leading role in the evolution of the firm,
later known as Hunton & Williams, beyond its regional roots to a corporate law
practice that was national in scope.
In 1936, when he was 28, Powell married Josephine Pierce Rucker, the daughter of a
prominent Richmond obstetrician. The two had met years earlier, but Powell first became
interested in the doctor’s daughter after hearing that she had set a broad-jump
record of 22 feet at Sweet Briar College. Their marriage was a lifelong love affair that
produced four children: Josephine Smith; Ann Pendleton Bowen, known as Penny; Molly
Sumner; and Lewis 3d. Mrs. Powell died in 1996. In addition to his children, Powell is
survived by nine grandchildren and one great grandson.
He volunteered for military service in World War II, spending more than three years in
Europe and North Africa as a combat and staff intelligence officer with the Army Air
Forces. He rose in rank from first lieutenant to colonel, earning the Legion of Merit,
Bronze Star and Croix de Guerre. He spent the last half of his tour in a military
intelligence unit known as the Special Branch, helping to analyze decoded German messages.
He presented daily briefings to senior officers, including at times General Dwight D.
Eisenhower who used the top-secret information to select Allied bombing targets. Colonel
Powell ended his assignment with several dozen officers under his command, and his return
to peacetime law practice was something of an anticlimax.
He had been active in the American Bar Association early in his career; he served a
term as its president from mid-1964 to mid-1965. He used that position as a platform to
lobby for an increased federal role in providing legal services to the poor and helped
shape the legal services program of the Office of Economic Opportunity.
Although he never held elective office, he was a leading figure in Virginia public
affairs as head of the Richmond school board from 1952 to 1961. He was a member of the
Virginia State Board of Education from 1961 to 1969, serving as its president for the
1968-69 term.
Virginia at that time was dominated by the Democratic machine of Sen. Harry F. Byrd,
who advocated stiff resistance to the Supreme Court’s 1954 desegregation decision.
Powell believed that such resistance would be deeply destructive. Under his leadership the
Richmond schools did not defy the court. On the other hand, integration was very slow in
coming to Richmond as elsewhere. When Powell left the school board in the spring of 1961,
only two of 23,000 black students in the Richmond public schools were attending school
with white children.
Ten years later, the Congressional Black Caucus opposed his nomination to the court,
arguing that he should have done more from his position as a community leader to fight
segregation and its legacy. Liberal Democrats on the Senate Judiciary Committee came to
his defense, however. When the committee approved his nomination, Sen. Edward M. Kennedy
and three other Democratic members issued a concurring report that praised Powell’s
record. "Lewis Powell was one of the courageous men in Virginia who was determined to
obey the law of the land," the report said.
In 1990, Virginia inaugurated as its governor L. Douglas Wilder, the first black person
in the country to be elected governor of a state. Wilder invited Powell, who was retired
by then, to administer the oath. As John C. Jeffries, Jr. recounted the scene in his book,
"Justice Lewis F. Powell, Jr." (Scribners, 1994), Powell called out above the
applause that followed the swearing-in: "It’s a great day for Virginia!"
Jeffries wrote: "For the sea of young black faces raised in pride and triumph, the
good wishes of a frail old white man may have meant very little, but to those with long
memories, it was a gracious benediction from the best of the old order."
Nixon announced Powell’s nomination to the Supreme Court, along with that of
William Rehnquist to fill a second vacancy, to a nationwide television audience on Oct.
21, 1971. The announcement came barely 24 hours after the American Bar Association’s
judicial fitness committee refused to endorse two Nixon candidates who had been considered
the front-runners for the seats. Powell had turned down an earlier offer of a seat on the
court from the Nixon administration, and rebuffed Attorney General John Mitchell’s
attempt to interest him in the new vacancy. He finally accepted with a deep reluctance
that was overcome only by a direct appeal from Nixon, who said it was Powell’s
patriotic duty to serve.
The bar association gave its former president its highest possible rating, and the
nomination was well received in legal circles. He was confirmed by the full Senate on Dec.
6, 1971, and he and Rehnquist were sworn in as the 99th and 100th members of the court on
Jan. 7, 1972.
Powell approached his new job without any great relish. He regretted leaving Richmond
and the law practice that he loved. Midway through his first year, he told members of the
Virginia Bar Association that he was not particularly enjoying the burdens, constraints
and isolation of his new status. "The truth is that I’d rather be a lawyer than
a judge," he told his former colleagues. "I really prefer to be competitive
rather than neutral, detached and disinterested." Nevertheless, he said, he had no
doubt that if he had it to do over he would still accept the appointment.
After moving to Washington, Powell maintained strong ties to Richmond. He and his wife,
Josephine, kept their Richmond house, a colonial mansion that had belonged to Mrs.
Powell’s parents, and returned there every summer. He also kept an office in the
federal courthouse in Richmond. In Washington, the couple lived in an apartment in the
southwest section of the capital, near the Potomac River.
But the court, when it was in session, was Powell’s real home. He told a group of
lawyers and judges in a 1983 speech that except for the summer recess, he worked 60 hours
a week, "considerably more than my chargeable hours ever were at the peak of a large
and demanding law practice."
Powell’s role as the court’s master of compromise and coalition- building was
nowhere brought into sharper focus than in the 1978 case of Allan Bakke. That case, in
which the court was asked to rule on the legality of a state medical school admissions
program that set aside a fixed number of places for black and other minority- group
applicants, sparked a vigorous national debate over affirmative action that continued for
years.
With the court split 4 to 4, Powell extracted a controlling opinion from the deadlock
by joining first one four-member bloc and then the other. He agreed with one group of
justices that the challenged program was unlawful because it totally excluded whites from
any consideration for the 16 places. But he then joined the other four members of the
court to conclude that a university could properly consider race and ethnic origin as a
"plus" factor among other factors to achieve a diverse student body.
"The State has a substantial interest that legitimately may be served by a
properly devised admissions program involving the competitive consideration of race and
ethnic origin," Powell said in his solitary opinion. The concept of affirmative
action was preserved and the debate, at least in the short run, defused.
Powell also played a key role in numerous Supreme Court cases that defined the
constitutional boundary between church and state. Cases challenging various programs of
state aide to parochial schools reached the court with regularity, and Powell’s vote
was often decisive in upholding or striking down a particular program. In that role, the
former school board president was keenly aware of the potentially inflammatory nature of
the debate over the relationship of religion and government. He believed that, apart from
doctrinal niceties, it was vital for the court to avoid fueling those fires.
For example, in 1977 he joined a fragmented majority that upheld an Ohio parochial aid
law. In his concurring opinion in Wolman vs. Walter, he noted that "at this point in
the 20th century," the risk of "deep political division along religious
lines" was "remote."
But in 1985, with the political debate over church and state at a peak, Powell provided
the fifth vote striking down parochial aid programs in New York City and Grand Rapids,
Mich. His concurring opinion in Aguilar vs. Felton, the New York case, cited the
"continuing risk of continuing political strife," noting that "the
potential for such divisiveness is a strong additional reason" for finding the
programs unconstitutional. In the 30 religion cases in which he participated — many
of them decided by closely divided votes — he was never on the losing side. The court
itself eventually adopted a different approach to questions of church and state,
overruling the Aguilar case in a 1997 decision called Agostini vs. Felton.
More often than not, Powell voted with the conservatives in cases dealing with criminal
law. He believed that prison inmates and their lawyers abused their right of access to the
federal courts by filing frivolous lawsuits, and he joined a majority of the court in the
mid-1980s in invoking new procedures for avoiding protracted appeals in death penalty
cases.
He voted to uphold the death penalty in numerous cases, including a notable case that
asked the court to examine allegations that application of the death penalty was infected
by racism. Challengers to the death penalty in Georgia presented statistics killers of
whites were more likely to be sentenced to die than those whose victims were black.
Writing for the court in a 5-to-4 opinion, McCleskey vs. Kemp, Powell said that the
statistical study did not "demonstrate a constitutionally significant risk of racial
bias" sufficient to invalidate the death penalty in Georgia.
The death penalty was one of two subjects on which Powell changed his mind after he
left the court. He told his biographer in a 1991 interview that he regretted his vote in
the McCleskey case and other death penalty cases. "I have come to think that capital
punishment should be abolished," he said.
He described his view as based on pragmatic concerns rather than on questions about the
morality or constitutionality of the death penalty itself. Doubts about the death penalty
could never be resolved and would inevitably bring the judicial system itself into
disrepute, the justice said. Jeffries detected a deeper source of disquiet in the retired
justice. "After 15 years of capital cases, Powell knew firsthand their deadly hold on
the judge’s peace of mind," he wrote.
Powell was a member of the majority in Roe vs. Wade, the 1973 decision that gave
women the constitutional right to obtain abortions, and he did not waiver in his support
of that principle. He wrote the court’s opinion in a 1983 case striking down
restrictions on abortion imposed by the city of Akron, Ohio. His opinion acknowledged and
rebuffed the efforts of antiabortion forces to persuade the court to overrule Roe vs.
Wade. The argument was settled, Powell wrote; the doctrine of adherence to precedent
"is a doctrine that demands respect in a society governed by the rule of law."
In an interview with the British Broadcasting Co. after his retirement, Powell
described a long-ago incident at his law firm that had shaped his views on the
desirability of legalized abortion in the years before Roe vs. Wade. A 19-year-old
messenger for the firm had called him at home early one morning with a desperate request
for help. His girlfriend had died while trying, with the messenger’s help, to abort a
pregnancy. The messenger could have been charged with murder.
In the interview, Powell said he visited the city prosecutor on the young man’s
behalf. "To make a long story short, no prosecution was ever brought," he said,
adding: "So I was in full agreement with the decision of the court in Roe. I
thought a woman ought to have the right, and I still think so."
In 1986, the question for the court was whether the constitutional right to privacy
recognized in Roe vs. Wade should also apply to consensual sex between homosexual
adults. In a 5-to-4 decision, Bowers vs. Hardwick, the court rejected that analysis
of the right to privacy. Powell joined Justice Byron White’s majority opinion that
described as "at best, facetious" the argument that there was constitutional
protection for homosexuality.
Four years later, in a question-and-answer session after a speech to students at New
York University Law School, Powell said he had originally voted the other way but had
changed his mind at the last minute. He now regretted his vote and had concluded that the
dissent "had the better of the arguments," he said.
He announced his retirement on the last day of the Supreme Court in June, 1987, giving
health problems as the reason. Two years earlier, he had nearly died of uncontrolled
bleeding following surgery for prostate cancer and had not regained his energy. He was 79
years old, reed-thin and frail in appearance. But he had an active and productive
retirement. Until 1996, when his health declined sharply, he sat regularly as an appeals
court judge — an available but little-used prerogative of retired justices — on
the 4th U.S. Court of Appeals, in Richmond. He gave speeches, gently but pointedly
reminding his former colleagues of the importance of civility and adherence to precedent.
On January 7 of last year, 25 years to the day after taking the oath as a Supreme Court
justice, he closed the office he had kept at the court and returned to live full time at
his home in Richmond.
He offered no comment, however, on the political firestorm that followed his
retirement. President Ronald Reagan nominated Robert Bork, a federal appeals court judge
and leading conservative legal scholar who had made no secret of his view that much of
modern constitutional law, from the criminal procedure rulings of the Warren Court to the
abortion decision in Roe vs. Wade, was profoundly misguided. The
Democratic-controlled Senate defeated the nomination after a nearly four-month battle. A
second nomination for the vacancy, that of Judge Douglas Ginsburg, was withdrawn.
Reagan’s third choice, Anthony Kennedy, a federal appeals court judge from
Sacramento, Calif., was eventually confirmed and took Powell’s seat on Feb. 18, 1988.
President Clinton paid tribute to Powell on Tuesday, saying: "For over 15 years on
the Supreme Court, he approached each case without an ideological agenda, carefully
applying the Constitution, the law and Supreme Court precedent regardless of his own
personal views about the case.
"His opinions were a model of balance and judiciousness. As a result, he was the
decisive voice on the court in addressing some of the most important issues of our
day."
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