Lewis F. Powell, Jr

Associate justice of the United States (1972-1987)

• Born: November 19, 1907
• Birthplace: Suffolk, Virginia
• Died: August 25, 1998
• Place of death: Richmond, Virginia

During his fifteen-year term on the U.S. Supreme Court, Powell was regarded as a moderate who, by his tact and intelligence, often managed to forge consensus among his colleagues on key issues such as capital punishment and affirmative action.

Early Life

Lewis F. Powell, Jr., was born to Lewis Franklin Powell, Sr., and Mary Lewis Gwathnay Powell. His father at the time was at the beginning of a successful career as a merchandising entrepreneur. Powell was the oldest of four children. He attended Washington & Lee University in Lexington, Virginia, where as an undergraduate he was president of the student body. He then studied at the Washington & Lee Law School and finished first in his class. Thereafter, he earned a master’s degree from Harvard Law School.

In 1936, Powell married Josephine Pierce Rucker, whose father, an obstetrician, had been summoned to deliver Powell’s twin siblings when the regular physician was unable to reach their home because of a snow storm. Powell’s wife would serve as a graceful leavening force, moderating Powell’s more reserved personality. The couple would have three daughters and a son.

During World War II, Powell served in the U.S. Army Air Corps for three years. He first worked as an interrogator of American airmen returning from missions in North Africa and Sicily. He then served in Europe in the Special Branch, a top-secret unit, where he interpreted intelligence reports, including decoded German communications. He had entered the military as a first lieutenant, rose to the rank of colonel, and was awarded the Legion of Merit, the Bronze Star, and the French Croix de Guerre.

Life’s Work

Demobilized from the Army late in 1946, Powell returned to private practice in Virginia, working for twenty-five years at Hutton, Williams, the leading law firm in Richmond. He was appointed to the Richmond School Board in 1950 and served as its chair from 1952 to 1961. The U.S. Supreme Court decision in Brown v. Board of Education (1954) mandating racial desegregation in the schools created a conflict for Powell between his adherence to the southern code of racial separation and his deep respect for the authority of the law as laid down by the Court. He advocated moderation but went along with the delaying tactics of the Virginia authorities to keep black children from attending white schools. Though he remained on the sidelines, he was not an obstructionist on the issue of desegregation when he served on the Virginia State Board of Education from 1961 to 1969.

Powell was elected president of the American Bar Association for the 1964-1965 term. In that role, he pressed for improved legal services for those unable to afford attorney’s fees. He argued that persons who did not have access to satisfactory legal counsel would lose their respect for the American legal system and for the legal profession.

Powell was nominated to the Court by President Richard M. Nixon and joined the Court in January, 1972. He served for fifteen and a half years, until his resignation on June 26, 1987. In the nearly three thousand cases that he helped decide, Powell contributed significantly to major issues facing the Court, including school desegregation, abortion, the Watergate scandal, death penalty laws, and affirmative action litigation.

On the Court, Powell became a staunch advocate of integrating schools racially, but he opposed the use of forced busing of pupils in order to overcome segregated residential areas that led to largely white or black schools. Powell maintained that busing produced so-called white flight from cities and from public schools into private schools. He also argued that transporting youngsters to more distant locations for their education eroded neighborhood support of nearby schools.

Powell was a staunch advocate of a woman’s right to abortion and would have preferred that the landmark Roe v. Wade decision in 1973 permitted unrestricted access to abortion not only in the first trimester of pregnancy but also in the second. It was only when the fetus could live outside the womb that Powell believed abortion should be illegal. He voted pro-choice in the many abortion cases that came before the Court, except in the case that upheld the right of the government not to provide funds to pay for the procedure. He maintained that those opposed to abortion would have to accept it but that they should not also be required to pay for it.

Regarding the death penalty, Powell believed there was no basis for the claim that the U.S. Constitution disallowed capital punishment, nor that it could be regarded as cruel and unusual punishment in violation of the Eighth Amendment. His position on the death penalty, set out in Gregg v. Georgia (1976), was that it ought to be allowed only after substantial restrictions had been established as to what elements of a crime and the record of the offender could determine its imposition. Some years after he had stepped down from the Court, however, Powell said that he had changed his mind, and that he now believed that capital punishment should be abolished.

Despite his gratitude to President Nixon for his appointment to the Court, Powell joined in the Court’s decision that Nixon must surrender the tapes that implicated him in the Watergate cover-up, though he inserted in that opinion standards that would protect the privilege of future presidents from insubstantial demands for information on executive branch matters.

Powell died of pneumonia in 1998 at the age of ninety. In tribute, his judicial colleague Sandra Day O’Connor wrote in her The Majesty of the Law (2003) that, “For those who seek a mode of human kindness, there will never be a better man.”

Significance

Historians of the Court and Powell himself rank his written opinion in the 1978 decision in University of California Regents v. Bakke as his landmark contribution to constitutional law. The case involved student Allan Bakke, who had been rejected for admission to the medical school at the University of California, Davis. The school had set aside for minorities sixteen of its one hundred openings for new students. Bakke argued that this “affirmative action” policy equaled “reverse discrimination” since his academic profile was better than that of minority students granted admission.

In reviewing the case, Powell believed that discriminating against better qualified applicants was not morally right but socially necessary if members of groups traditionally repressed were to have a chance to enter the professions. He fashioned an approach that outlawed quota systems but permitted colleges and universities to seek diversity in their student populations.

Powell earned the label of “hard-core moderate” during his decade and a half of service on the Court. He played a vital role in bridging the gap between disparate views held by his fellow judges and persuading each side to give some ideological ground on matters of great importance to the nation.

Bibliography

Freeman, Ann Hobson. The Style of a Law Firm: Eight Gentlemen from Virginia. Chapel Hill, N.C.: Algonquin Books, 1989. Freeman relates the history of the Richmond law firm in which Powell was a partner.

Jeffries, John C., Jr. Justice Lewis F. Powell, Jr. New York: Scribner’s, 1994. Comprehensive examination of Powell’s career. Jeffries, a University of Virginia law professor, offers a readable and evenhanded report and assessment of Powell’s life and work.

Landynski, Jacob W. “Justice Lewis F. Powell: Balance Wheel of the Court.” In The Burger Court: Political and Judicial Profiles, edited by Charles M. Lamb and Stephen C. Halpern. Urbana: University of Illinois Press, 1991. Examines Powell’s legacy on the Burger court.

O’Connor, Sandra Day. The Majesty of the Law: Reflections of a Supreme Court Justice. Edited by Craig Joyce. New York: Random House, 2003. Justice O’Connor, the first woman appointed to the Supreme Court, describes her life and work and tells of her friendship with Powell. “Lewis was the only Justice whom I felt absolutely free to visit with about issues in argued cases,” O’Connor writes.

Schwartz, Bernard. Behind Bakke: Affirmative Actions and the Supreme Court. New York: New York University Press, 1978. Professor Schwartz provides a comprehensive case study of the Court’s handling of the pioneering affirmative action case.

Tushet, Mark. “Justice Lewis F. Powell and the Jurisprudence of Centrism.” Michigan Law Review 93 (May, 1995): 1854-1884. Using Jeffries’ biography as background, Tushnet focuses more on what he calls “the limits of Powell’s social view.”

Wilkinson, J. Harvie, III. Serving Justice: A Supreme Court Clerk’s View. New York: Charterhouse, 1974. Wilkinson, the son of a close friend of Powell, served as one his three law clerks when Powell assumed his seat on the Supreme Court.