Retired Justice Lewis Powell Dies at 90

Retired Supreme Court Justice Lewis F. Powell Jr. poses outside the court in 1990. (AP)

By Joan Biskupic and Fred Barbash
Washington Post Staff Writers
Wednesday, August 26, 1998; Page A1

Retired Supreme Court Justice Lewis F. Powell Jr., a voice of moderation on the Supreme Court for much of the 1970s and 1980s and the decisive vote during years of ideological turmoil, died yesterday at the age of 90.

Powell was a proud son of his native state of Virginia and a leader in the legal profession nationwide before his appointment by Richard M. Nixon to the court at age 64. He died in his sleep of pneumonia at his home in Richmond.

Distinguished by his soft southern accent and a rigorous code of courtesy, the tall, slender justice provided the pivotal vote on some of the most difficult social dilemmas of his time.

Powell in 1987 (AP)

Powell's legacy emerges from his steadfast approach to judging and his resolute effort to respect the views of those with whom he did not agree. He struggled to approach each case without letting his personal ideologies interfere, and by setting aside the attitudes that grew out of his prosperous, southern upbringing. At the same time, he arrived just as America's highest court was confronting issues such as affirmative action and abortion for the first time and regularly taking up disputes over the separation of church and state. It often fell to Powell to find the common ground between those justices entrenched on the left and right.

"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," President Clinton said yesterday. "His opinions were a model of balance and judiciousness.

Powell, who served from 1972 to 1987, greatly valued continuity in the law and believed that once a course had been set, it was dangerous to veer off: "Stability and moderation are uniquely important to the law," he once wrote.

Conservative on Crime

He generally sided with the court's conservatives on business and criminal cases, believing that the balance had tipped too far in favor of criminal defendants. But he consistently voted against the Nixon administration, and then the Reagan administration, when the court found a constitutional right to abortion and when it laid out the path for the use of affirmative action in higher education.

In that landmark case, Regents of the University of California v. Bakke, Powell wrote the majority opinion allowing colleges and universities to consider race among other factors in when deciding which students to admit. And he found the middle ground that allowed schools to take race into account for diversity, but also forbidding schools to set aside a specific number of slots for racial minorities.

Voted Against Nixon

Powell also played a critical role in the court's unanimous 1974 decision forcing Nixon to turn over White House tapes relating to Watergate but ensuring that the president's claim of executive privilege not be rejected completely. Powell believed in a strong executive and did not want one difficult case to undermine future presidents' power.

He was the pivotal, fifth vote when the court in 1986 ruled that consenting adults have no constitutional right of privacy that allows them to engage in homosexual acts; and Powell was the author of a 1987 decision rejecting arguments that a state's capital punishment was discriminatory simply because statistics suggested blacks were more likely to get the death penalty than whites. After he stepped down from the bench, Powell said he regretted both of these positions.

"I think I probably made a mistake in that one," he said specifically of the Georgia anti-sodomy law case known as Bowers v. Hardwick, observing that the decision was inconsistent with the right of privacy articulated inRoe v. Wade.

Powell strived to restrain the power of the federal courts, scrupulously respecting the lines separating the elected branches and the state governments from the judiciary. Uncomfortable with novel theories of constitutional law, he took pride in an ideology-free approach to the cases and issues confronting the court.

Such judicial pragmatism lingers today in the approaches of Justices Sandra Day O'Connor and Anthony M. Kennedy, the latter of whom succeeded Powell, after the bruising Senate confirmation fight over Robert H. Bork.

Just as experienced Supreme Court litigators today often focus their arguments toward winning the sentiments of those swing vote justices, in the 1970s and '80s Powell was the justice to woo. Lawyers believed that if they could win over Powell, their argument would inevitably attract at least four other justices. Powell, more so than O'Connor and Kennedy today, was also known as a consensus builder.

On the court, and in his career as a partner in one of Richmond's most prominent law firms, as president of the American Bar Association and as head of the Richmond School Board during a time when it was attempting to move away from segregation, Powell was known as a "lawyer's lawyer," recoiling from extremes and searching out the middle ground.

In a similar vein, among justices, lawyers, reporters and court employees of every level, his kindness and good manners were legendary.

University of Virginia law professor John C. Jeffries Jr., who wrote a biography of Powell, said the justice gave real weight to the views of both sides at a time of ideological showdowns. Conservatives on the court then, led by Warren E. Burger and William H. Rehnquist, were typically pitted against liberal bulwarks William J. Brennan Jr. and Thurgood Marshall.

"He was a good listener," Jeffries reiterated yesterday. "That was a matter of style; he was a gentleman. But more than that. He sincerely was respectful of the views of others."

But Powell was a reluctant appointee. He turned down Nixon for the job in 1969, and in 1972, after he had donned the robes, said: "The truth is that I'd rather be a lawyer than a judge. I was never in any doubt as a lawyer as to which side I was on. I really prefer to be competitive rather than neutral, detached and disinterested."

He was 64 when he was appointed to the high court and remained concerned about his neutrality throughout his tenure.

Washington lawyer and former Powell law clerk David Stewart recalled in an interview: "I remember him saying, 'David – he always addressed you by your name – David, you have no idea how hard it is to keep an open mind when you're 72 years old.' He was absolutely a creature of his upbringing and attitudes. And he did not think it was right to give voice to those attitudes. He tried to have an open mind."

When Powell retired after 15 years, Nixon wrote a letter apparently without bitterness over Powell's vote in the Watergate tapes case or other issues with which the two parted company. Reprinted in the Jeffries biography, the longhand letter said: "Dear Lewis, When you were reluctant to accept appointment to the Supreme Court because of your age I observed that ten years of Lewis Powell on the Court was worth 20 years for anyone else. Your superb service has eloquently demonstrated that I was right. All Americans are in your debt. Sincerely, Dick Nixon."

After his retirement in 1987, Powell continued to come to his chambers at the Supreme Court and to hear cases for the Richmond-based 4th U.S. Circuit Court of Appeals. His health slowly declined and in 1997 he closed out his chambers for good.

Chief Justice Rehnquist, who joined the court on the same January day in 1972 that Powell did, said in a statement yesterday, "He was the very embodiment of 'judicial temperament'; receptive to the ideas of his colleagues, fair to the parties to the case, but ultimately relying on his own seasoned judgment."

Powell was born Sept. 19, 1907, into a prosperous Suffolk, Va., family and attended private schools. His father was a successful businessman and his mother a homemaker. He earned a bachelor's degree from Washington and Lee University in 1929 and a law degree there in 1931. The following year, he earned a master's degree in law from Harvard Law School.

Powell returned to Richmond and entered private law practice, settling with the prestigious firm of Hunton Williams, described as "not just part of the establishment but the establishment itself." In 1936 he married Josephine Rucker, daughter of a prominent physician. They eventually had three daughters and a son.

During World War II, Powell joined the Army Air Corps intelligence unit and worked as part of a team that deciphered German military communications.

"If you'd asked him what he cared most about in his life, he would say World War II," biographer Jeffries said in an interview. "He was a very patriotic man, not in the flag-waving sense but in that he had a strong conviction that the United States was the world's best hope for freedom."

After the war, Powell returned to the Richmond law firm and proceeded to build a largely corporate clientele. He would later join the boards of directors of several major companies, and accumulate a fortune in personal investments. This background would make him one of the justices most experienced in business and corporate affairs but it would also open him to criticism by liberal court observers that he was too sympathetic to business.

Powell developed a deep friendship with Virginia Sen. Harry F. Byrd and served as chairman of the Richmond School Board from 1952 to 1961. Soon after he joined the school board, the Supreme Court issued its ruling in Brown v Board of Education, declaring segregated school systems unconstitutional. Virginia, like other southern states, operated a dual school system.

Led by Byrd and his allies, the state embarked on a policy of "massive resistance" to desegregation, determining that it would close down schools rather than integrate them. But Powell would not be part of it. "I was honestly devoted to the old gentleman," Powell said of Byrd years later. "The first political speech I ever made was for him back in 1946. But I disagreed completely with the massive resistance policy. I thought it would destroy the public schools."

Led Bar Association

Powell first came to national prominence in 1964, when he was elected president of the American Bar Association. In that role, he continued to win a reputation for moderation, refusing to accept a label on either side of the political spectrum.

Powell was first approached about the Supreme Court in 1969, when the Nixon administration was looking for a southern justice to replace Abe Fortas, who had resigned under a cloud. Though Powell was a lifelong Democrat, Nixon knew he was nonetheless a strong believe in law enforcement and saw in Powell a chance to reverse an era of rulings favoring criminal defendants.

Yet in an extraordinary action for a lawyer, Powell asked that his name not be considered for the nomination, in part because he feared a Senate battle over the appointment of a southerner and in part because he enjoyed his life in Richmond, his lucrative law practice, his civic activities and clubs, and his wide circle of friends.

Two years later, when Justice Hugo L. Black retired, Nixon again asked Powell to join the court. This time he accepted, but with deep misgivings. "I am primarily a lawyer," he said then. "I would rather play in the game than be the umpire."

But, he said, "if you're asked by the president of the United States to go on the Supreme Court, one doesn't say 'no.' " He was named at the same time that Nixon sought to appoint Rehnquist, then an assistant attorney general, to the court.

The appointment of Rehnquist, already known for his strong conservative views, caused far greater controversy. Roy Wilkins, then executive director of the NAACP, spoke out against the Rehnquist nomination but said: "I am not here to say nay or yea for Lewis Powell. … It appears Powell is less objectionable [than Rehnquist] on the grounds of race. He seems a philosophical gentleman who has won many honors in the legal profession."

Powell was confirmed by an 89 to 1 vote, with only then-Sen. Fred Harris (D-Okla.) dissenting, saying he thought Powell was "an elitist" who lacked compassion for "little people." Powell was sworn in on Jan. 7, 1972, the first Virginian on the court since before the Civil War.

Powell, while maintaining his home in Richmond, took a small apartment with his wife in Washington. From the beginning, he said he found the court's regimen and isolation hard to accept. "I do not enjoy being away from Richmond, my friends of a lifetime and my home. … I do not enjoy working 6½ days a week and almost every night at a time when I had planned to be tapering off," he said in one speech, acknowledging however, "there are compensations which appeal to any lawyer who is proud of his profession. The Supreme Court is an awesome place."

Powell once said his wife, Josephine, read to him aloud at night before bedtime. It soothed him, he said, and kept him from waking up in the middle of the night wondering how he should vote on a case. (Josephine Powell died in 1996.)

Not Easily Labeled

Early on the bench, Powell began making clear that his views could not easily be labeled. He held fast to his beliefs in the importance of criminal laws, signing onto decisions that limited the so-called exclusionary rule that kept illegally seized evidence out of trials. He also voted to ease limits on police interrogations of suspects.

But by the early and mid-'80s, as the court was moving to the right with the addition of Reagan appointees, Powell's votes stymied the Reagan judicial revolution.

Powell wrote a 1983 opinion strongly affirming Roe v. Wade, the 1973 decision establishing a constitutional right to abortion, and in 1986 cast the decisive vote when the court again, in the face of attacks by the Reagan administration, upheld Roe. The latter decision struck down a Pennsylvania law intended to discourage women from having abortions.

Powell also was the key vote in 1985 when the court rejected New York's policy of sending public school teachers into religious schools to teach disadvantaged students, and he voted with the majority when it struck down moment-of-silence laws intended to bring back prayer to the nation's public schools.

Perhaps one of his most known majority opinions was in the landmark 1978 case involving racial quotas in a California medical school admissions policy. He took a middle position, joined in separate parts of his opinion by justices on the left, then on the right.

"[T]he 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," he wrote.

He also penned the majority opinion in a sharply divided 1982 case over whether presidents can be sued for monetary damages when they break the law or violate citizens' constitutional rights while in office. (This differs from the recent Paula Jones lawsuit against President Clinton, which related to allegations of personal misconduct before Clinton entered the White House.) Powell's opinion is filled with concern for a president who might be diverted from his official duties by concern for private lawsuits: "Because of the singular importance of the president's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government."

Powell would rue one of his most controversial positions. He was the author of a 1987 five-justice ruling rejecting arguments that a state's capital punishment system be struck down because statistics suggested blacks were more likely to get the death penalty than whites. He said he regretted that decision and declared that he had come to think that capital punishment should be abolished.

Retired in '87

Powell's retirement in June 1987, at a time when the court was sharply divided, set off a fierce confirmation battle. Reagan's first nominee, Bork, was rejected by the Senate. Then Reagan's second choice, appeals court Judge Douglas Ginsburg withdrew his name before his official nomination after it became public that he had used drugs as a college student and later as a professor at Harvard. In the end Kennedy, a California federal appellate court judge, took the seat, helping to move the court more to the right.

Kennedy said in a statement yesterday: "His dedication to the law and his marvelous demeanor are a splendid legacy to all of us who follow him."

Lewis F Powell