Lewis F. Powell Jr.
Lewis F. Powell, Jr. (born 1907) was a corporate lawyer who became a U.S. Supreme Court justice. He became the intellectual leader of the Court's moderate center until his 1987 retirement.
Lewis F. Powell, Jr. was born on September 19, 1907, in Suffolk, Virginia, son of a comfortable middle-class family. Powell attended Washington & Lee College, from which he graduated in 1929, and Harvard Law School, where he studied under Felix Frankfurter, completing a
L.L.M. degree in 1932. Powell married Josephine M. Rucker on May 2, 1936, and was the father of three daughters and a son. Admitted to the Virginia bar, he entered private practice in Richmond in 1937 and became a partner in the prestigious Richmond firm of Hunton, Williams, Bay, Powell & Gibson. During World War II he served as an Air Force intelligence officer in North Africa. Returning to his Richmond practice, he gained national recognition as a corporate lawyer, subsequently serving on the board of directors of 11 major companies. A pillar of the American legal establishment, Powell served as president of the American Bar Association (1964-1965), president of the American College of Trial Lawyers (1968-1970), and president of the American Bar Foundation (1969-1971). His service as vice president of the National Legal Aid and Defender Society was instrumental in securing support of the organized bar for government-subsidized legal service for poor people.
Active in community affairs, Powell was chairman of the Richmond School Board, where during the late 1950s and 1960s he urged a moderate course in complying with Brown v. Board of Education and kept the Richmond schools open despite calls for "massive resistance" to desegregation. He led in the voluntary desegregation of Washington & Lee University. He was not, however, a leader in bringing racial equality to the South. The Fourth Circuit Court ruled in 1965 that practices of the Richmond School Board under Powell's leadership unconstitutionally perpetuated racial segregation (Bradley v. School Board of Richmond ).
Appointed to the Supreme Court by Richard Nixon in 1972, Powell was viewed as cautious and pragmatic, with a skepticism for doctrinaire solutions. He was also distrustful of governmental interference in private affairs and committed to logical analysis as an aid to predictability and principled decision making. Powell quickly emerged as the intellectual leader of the Court's moderate center. He also sought to limit access to the courts by persons seeking to litigate generalized grievances. In U.S.v. Richardson (1974) he went out of his way to warn of the dangers to a democratic society of an overly activist judiciary. His personal biases also came out in business cases, where his decisions failed to strike the note of reasoned moderation that prevailed through much of the rest of his jurisprudence.
Powell was generally charry toward government regulation. On anti-trust opinions he tended to favor the business attacked. He voted against organized labor and was unenthusiastic about environmental and consumer protection, urging an extremely narrow reading of the Truth-In-Lending Act to exclude many installment transactions from its coverage (Mourningv. Family Publications Service, Inc. [1973]).
Powell's balance did show in a number of fields. In criminal law he generally ruled to increase the authority of law enforcement officials to obtain information and to decrease the zone of privacy that the individual had against government. He tended to narrow the Fifth Amendment's guarantees against self-incrimination. He refused to sustain the government's power to wiretap, however, maintaining that wiretapping was search and seizure within the meaning of the Fourth Amendment (U.S. v. U.S. District Court [1972]). On the other hand, he rejected the contention that the Fourth and Fifth amendments interlocked to provide a broad privacy area immune from governmental intrusion. Instead, he took the literal language of each amendment and read it narrowly. On the "exclusionary" rule, Powell was hostile, arguing it impeded successful law enforcement. He rejected the view that capital punishment violated the Eighth Amendment, but also the view that no constitutional constraints restricted its use. Rather, he favored a middle course, suggesting the states enact mandatory capital punishment laws (Furman v. Georgia [1972]).
In the civil liberties area, Powell was strongly separationist on matters of church and state, striking out particularly at various forms of aid to parochial schools (Committee for Public Education and Religious Liberty v. Nyquist [1973]). He supported the Court's decision in Roev. Wade (1973) and wrote a strong opinion reasserting women's constitutional right to end their pregnancies in 1983. In First National Bank of Boston v. Bellotti (1978) he found the public's right to know more important than the state's interest in regulating corporations and wrote a seminal opinion granting First Amendment protection to corporate speech.
In the equal protection field Powell was more critical of racial discrimination in employment than he was in education, although he agreed that the 1966 Civil Rights Act reached discrimination in private schools (Runyon v. McCrary [1976]). He joined Justice William O. Douglas in denouncing the distinction between de facto and de jure
segregation, calling for enforced national standards in that area. On bussing to achieve integration, he opposed large-scale, long-distance bussing requirements in metropolitan areas.
Powell's best known opinion was in California Board of Regents v. Bakke (1978), where he cast the deciding vote and wrote the authoritative individual opinion. In it he invalidated rigid racial quotas in admissions, but upheld the discretion to use race as a factor in establishing an affirmative action program. The opinion reflected Powell's judicial experience, representing a careful move between polar extremes which enabled compromise and supplied sensitive—if conservative—guidelines for future rulings.
In the preface of a 1994 biography on Justice Powell, the author mentions that shortly before Lewis Powell retired from the Supreme Court, a civil liberties leader called him "the most powerful man in America." The statement, the author continues, refers to Powell's ideological center of a divided Court, and revealed the remarkable degree to which liberals had come to depend on the conservative from Virginia. President Nixon had not anticipated Powell's role as an occasional liberal when he appointed him to the Court sixteen years earlier. Unlike the other Nixon appointees, Powell proved to be highly independent, open to argument and willing to reconsider his own preconceptions.
He retired from the Supreme Court in 1987 citing age and health problems. In addition to urological problems, he suffered at night from a concerning pain in his legs. He had a blood infection in 1988 and in 1989, he contracted pneumonia while sitting on an appeals court in Florida. Powell then began to black out for no apparent reason until it was discovered that cardiac arrhythmia was to blame. A cardiac pacemaker remedied the problem, only after he suffered a fall with a resultant broken hip. His recuperation kept him sidelined until early 1991. Despite his setbacks, he continued to work, maintaining an office in the Supreme Court with a secretary, a messenger, and one clerk.
Fearing a lack of activity, he decided to chair Chief Justice Rehnquist's committee on habeas corpus in capital cases, to deliver lectures, to spend several weeks in residence at the University of Virginia and Washington and Lee, to receive various awards and honorary degrees and to sit on appeals courts in Richmond and elsewhere. He continued to do the work in which he had devoted his life.
Further Reading
Powell's career through the late 1970s is detailed well in Leon Friedman, editor, The Justices of the United States Supreme Court: Their Lives and Major Opinions, vol. V (1978). Useful sketches are also included in Catherine A. Barnes, Men of the Supreme Court: Profiles of the Justices (1978), and in the Congressional Quarterly Guide to the U.S. Supreme Court (1979). J. Harvie Wilkinson, Serving Justice: A Supreme Court Clerk's View (1974) is an interesting and sympathetic account of the author's association with the justice as well as a revealing look at the inside of the Court.
For Powell's impact on the Supreme Court and on the nation, see John C. Jefferies, Jr., Justice Lewis F. Powell, Jr. (1994). The book does not make an attempt to survey the nearly three thousand decisions rendered by the Supreme Court while Powell was a member, instead it focuses on six areas of commanding interest: desegregation, abortion, Watergate, the death penalty, affirmative action, and sexual equality. □
