Six days after his retirement from the U.S. Supreme Court on June 26, 1987, Justice Lewis F. Powell Jr. looked back over the long journey from his roots in the Old South. He had come of age as a conservative, who was not ”as eager for social change as some people are,” and made his way to the strategic center of the court, where he helped consolidate and advance some of the most profound social changes ever wrought by the judiciary.
For his first 45 years, Powell recalled in his barely audible Tidewater Virginia drawl, ”there was de jure segregation in the Southern states, not only of the schools but of public accommodations, facilities, theaters.” A note of wonderment crept into his voice as he completed the thought: ”I just can’t imagine how I grew up and accepted that as a normal way of life in this country.”
Unlike many other prominent Southerners, Powell also accepted the profound change in that way of life decreed by the Supreme Court in 1954, in Brown vs. Board of Education of Topeka, as the law of the land. ”It produced a revolution in our country, not just in the South but nationally,” he stressed. As head of the Richmond School Board, Powell helped engineer the peaceful (albeit very gradual) desegregation of the city’s schools.
And by 1978, as Justice Powell, he was writing the pivotal opinion in the 5-4 decision in Regents of the University of California vs. Bakke, which upheld the use of race as a ”plus factor” for black students (while barring numerical quotas) in state university admissions as a way to promote racial diversity in the student body.
This personal evolution was the American establishment at its best. Powell–who died on Aug. 25 at the age of 90–prized our country’s noblest traditions; he worked to transcend our legacy of racial oppression; and all the while, he struck a careful balance, heeding the calls of compassion and conscience but resisting the temptation to race pell-mell down the road of government by judiciary.
From proud but modest origins, Powell excelled in college and law school, distinguished himself as a colonel in a World War II military intelligence unit, and came home to become a prominent lawyer in Richmond and a leader of his profession nationally, including a stint as American Bar Association president. In 1971, at an age (64) when many of his contemporaries were getting ready to retire, he agreed with great reluctance to begin a new career on the ideologically splintered Supreme Court. He spent the next 15 years grappling with the most contentious legal and social issues on the national agenda while exuding genuine warmth and admiration for liberal and conservative colleagues alike.
Aptly called a ”hard-line moderate” by his biographer, John C. Jeffries Jr., the deceptively frail-looking Powell held to his principles with steely determination while tipping the balance in many a 5-4 decision–on affirmative action, abortion, religion in public life, the rights of criminal defendants, the death penalty, and other critical issues.
Powell, who leaned a bit to the right on criminal law issues, was eloquent in his appeals for judicial restraint and deference to democratic rule and federalism. But he did not shrink from forceful use of judicial power to correct what he saw as manifest injustice. One example was his 1973 vote in Roe vs. Wade to strike down dozens of anti-abortion laws around the country. Another was his 1982 concurrence in a 5-4 decision requiring Texas to provide free public education to the children of illegal aliens: Neither the Constitution nor rational policy, Powell wrote, could countenance the saddling of innocent children with ”a lifelong penalty and stigma” or ”the creation within our borders of a class of illiterate persons.”
Powell did not possess the court’s most dazzling intellect, though he was exceptionally sharp. Nor was his the most intellectually coherent jurisprudence: Scholars faulted him for making the law too unpredictable by straddling so many tough issues, leaning this way or that based on nuanced factual distinctions or the changing temper of the times. Powell’s opinion in the Bakke case, for example, has provided ammunition to both sides in the affirmative action wars for the past 20 years, while attracting acerbic criticisms from colorblind-Constitution conservatives.
But Powell’s straddling was attributable not to indecisiveness but to statesmanship. He strained, in cases like Bakke, for ways to respect and accommodate competing values and principles rather than awarding unconditional victory to either side. In Powell’s view, hard cases called for delicate compromises.
”Lewis Powell is, above all, humane,” Jean Camper Cahn, an activist black lawyer who had worked with Powell on legal aid for poor people, told the Senate Judiciary Committee during Powell’s 1971 confirmation hearing. ”He has a capacity to empathize, respond to the plight of a single human being to a degree that transcends ideologies of fixed position. . . . His very soul will wrestle with every case until he can live in peace with a decision that embodies a sense of decency and fair play and common sense.”
A few Powell remarks, culled from the notes of my visits to his chambers in the late 1980s, when I covered the court for The New York Times, may convey some sense of the man: On his judicial philosophy: ”I don’t have one. . . . I try to be careful to do justice to the particular case, rather than try to write principles that will be new or original or whatever.”
On the reaction of Powell’s wife (who died in 1996 after a 60-year romance) to his 1971 decision to yield to President Nixon’s entreaty that it was his patriotic duty to accept nomination to the Supreme Court: ”Jo burst out crying and said that I’d made a great mistake, and changed our life.”
On his 60-hour workweeks: ”My wife says I’m the dullest husband she’s ever had.”
On women in the legal profession: ”I thought women were too sweet and gentle to be good lawyers. Now I know better.”
On Roe vs. Wade: ”The abortion case was a very difficult case for me, extremely difficult. I was raised in a very religious family, and yet I joined the opinion. . . . I’m perfectly certain that my mother and father would have been horrified. . . . You had the law of the majority of the states one way and very strong considerations the other, and identifying the provisions of the Constitution that were relevant presented problems.” He added: ”I have no second thoughts on that.”
On his hardest case: ”The Nixon case”–the 8-0 ruling in 1974 that President Nixon must surrender his Watergate tapes– ”caused a great deal of anguish. . . . President Nixon deserves commendation in history for accepting promptly and without equivocation the decision of the court. He could have created a constitutional crisis. There was nothing we could have done.”
On a 1987 New York Times headline calling him the Supreme Court’s ”swing man”: ”I cringed more than a little at that (because) it seemed to me to connote that I desired to be and endeavored to be the swing vote. But that is far from the fact.”
On relations between the justices: ”We disagree strongly, as our dissents indicate. But at conferences and in the general relationship between the justices, there’s a high level of congeniality and friendship. . . . My closest friends in Washington, with a few exceptions, are members of this court.”
While covering the Supreme Court, I was fortunate to visit with three great and good men: Powell, William J. Brennan Jr. and Thurgood Marshall. They had many differences. But each was decent, honorable, and unpretentious; each approached his work with a sense of mission; and each was indulgent toward pesky reporters seeking to share some memories.
As justices, they complemented one another well. Brennan and Marshall, the great liberal crusaders, may have helped Powell transcend his traditionalist background and appreciate what it takes to render equal justice to downtrodden people. Powell, whose courtly collegiality was qualified by what he himself called his competitiveness, admired his more-liberal colleagues even as he blocked some of their bolder efforts to displace democratic rule by judicial decree.
Sixty years ago, Judge Learned Hand wrote in a eulogy to Justice Benjamin N. Cardozo some words that fit Justice Lewis Powell just as well: ”In this America of ours where the passion for publicity is a disease, and where swarms of foolish, tawdry moths dash with rapture into its consuming fire, it was a rare good fortune that brought to such eminence a man so reserved, so unassuming, so retiring, so gracious to high and low, and so serene. He is gone, and while the West is still lighted with his radiance, it is well for us to pause and take (ac)count of our own coarser selves.”
Now Powell is gone, as are Brennan and Marshall. We need more such men, and women, brought to eminence. Where, in this America of ours, will we find them?