Lewis Franklin Powell, Jr. (1907–1998)

Lewis Powell, a very successful lawyer in Richmond, Virginia, had no desire to go on to the U.S. Supreme Court, especially at age 64, but he finally gave in to the entreaties of the Nixon administration, and the Senate quickly confirmed the nomination by a vote of eighty-nine to one. Powell served fifteen years and when he retired declared it the saddest day of his life. He had easily adapted to the role of justice, and during most of his tenure provided the swing vote in numerous five-to-four decisions.

Lewis Franklin Powell, Jr. (1907–1998)Prior to joining the Court Powell had been involved in Virginia school affairs in Richmond and on the state level. During the days of massive resistance to the Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), Powell had worked quietly but effectively to keep the schools open in the city and in most of the state. Although the snail’s pace of desegregation did not satisfy leaders of the black community, they came to admire Powell and at his confirmation hearings testified to his integrity, his ability to reach across racial lines, and his concern for the common people.

Once on the Court, Justice Powell continued to show these concerns. According to one scholar,

[Powell’s] jurisprudence was governed to a considerable degree, indeed a decisive one, by his strivings for fairness, compassion, equity, and an adherence to his perception of genuine societal consensus. Lewis Powell quickly came to be regarded as the conscience of the Court on such emotion-charged issues as race and gender, as well as the omnipresent contentious questions of religion, suffrage, and criminal justice.

It is impossible to label Justice Powell a judicial liberal or a judicial conservative. He voted occasionally with the liberal bloc headed by Justice William Brennan, and just as often with the conservatives led by William Rehnquist. He refused to put a label on his jurisprudence, but a key is the fact that his judicial hero was the second John Marshall Harlan. Powell had known him and believed in the same cautious, case-by-case evaluation; like Justice Harlan, Justice Powell was a centrist, moderately conservative, and historically conscious. As Justice Sandra Day O’Connor, who joined hum in the center, said upon his retirement, ‘‘at times he may have been willing to sacrifice a little consistency in order to reach for justice in a particular case.’’

Justice Powell’s most famous opinion— indicative of his entire approach—was in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Joined by the four conservative members of the Court, he held that racial quotas in Affirmative Action programs could never meet constitutional scrutiny. Then, joined by the four liberal justices, he ruled that race could be a consideration in college admission programs. Although often derided as a Jesuitical opinion that split hairs and evaded the real issue, over time the wisdom of the justice’s cautious approach came to be more widely appreciated, and the Court reconfirmed Powell’s position in Grutter v. Bollinger (539 U.S. 306, 2003).

While Justice Powell usually voted in favor of giving women equal rights, he was not willing to give Justice Brennan a fifth vote in Frontiero v. Richardson, 411 U.S. 677 (1973), to make gender a suspect classification along with race. Rather, reflecting his cautious views on the matter, he went along with giving gender classifications an ‘‘increased’’ rather than a ‘‘strict’’ scrutiny standard. In another five-to-four decision in which his was the key vote, Justice Powell refused to recognize privacy rights for homosexuals in Bowers v. Hardwick, 478 U.S. 186 (1986). After his retirement he told an interviewer that he regretted the vote he had cast in that case and would now have voted differently. In 2003, the Supreme Court reversed Bowers in Lawrence v. Texas, U.S. 123 S.Ct. 2472 (2003).

In civil liberties, Justice Powell’s greatest influence lay in First Amendment cases involving the religion clauses. As a proud son of Virginia, he believed fervently in Thomas Jefferson’s Statute for Religious Freedom (1786). Although he was not an absolutist, there had to be very good reason provided to him before he would violate the idea of a strict wall of separation between church and state. In the thirty Establishment Clause cases decided during his tenure, Justice Powell was on the winning side in all of them. In nineteen, the Court found that various state actions violated the clause, and in the rest the Court supported what the state had done.

Unlike his more conservative brethren on the Court, Justice Powell found Chief Justice Burger’s three-pronged test in Lemon v. Kurtzman, 403 U.S. 602 (1971), to be a perfect measure for evaluating potential violations of the Establishment Clause. To him it made perfectly good sense to ask whether the challenged law had a secular legislative purpose; whether its primary purposes would neither advance nor inhibit religion; and whether it did not foster an excessive entanglement between religion and the government. The Lemon test allowed him in Mueller v. Allen, 463 U.S. 388 (1973), to support a Minnesota law allowing tax deductions to parents of all elementary and secondary schoolchildren, whether in public or parochial schools, for legitimate educational expenses such as secular textbooks, tuition, and instructional materials. On the other hand, his was the key vote in striking down a Grand Rapids, Michigan, law that authorized state payments for personnel, supplies, and materials to forty religious schools (Grand Rapids School District v. Ball, 473 U.S. 373, 1985), since here the money could potentially underwrite religious activities.

While the justice joined a highly criticized opinion by Chief Justice Burger upholding the constitutionality of a city-government-sponsored display of a cre`che in a Christmas display in a public park (Lynch v. Donnelly, 465 U.S. 668, 1984), he fully agreed with the majority in Edwards v. Aguillard, 482 U.S. 578 (1987), that Louisiana’s ‘‘balanced treatment’’ law requiring the teaching of ‘‘Creationism’’ along with evolution in the public schools violated the First Amendment. In a concurring opinion Justice Powell elaborated eloquently on the work of Jefferson and James Madison to secure religious freedom and a ban on any form of religious establishment.

Because of his prior experience as a member of the city and state school boards in Richmond, Justice Powell played a key role in the various education cases that came before the Court in the 1970s and 1980s. Aside from those involving aid to religious schools, there were cases on finance and local control that the Court addressed. Here, the justice’s basic conservatism and his respect for localism determined his vote, and in nearly all cases he wanted to know whether the action under consideration furthered the education of children. Education cases well reflect Justice Powell’s careful, case-by-case manner and his effort to weigh all of the competing constitutional interests.

The most important decision he wrote in this area is San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). Latino parents in San Antonio challenged how Texas funded its public schools, mainly through local property taxes. As a result the funds available for instruction, buildings and maintenance, and supplies were far greater on a per-pupil basis in the rich districts than in poorer areas. The plaintiffs claimed that Texas violated the Fourteenth Amendment’s equal protection clause in that their children did not receive an education of the same quality as did those living in wealthier districts.

Justice Powell wrote for a five-to-four majority that refused to add poverty to the list of suspect classification covered by equal protection. While admitting that education played an important role in contemporary society, he found no evidence that it constituted a basic right protected by the Fourteenth Amendment. States could, as Texas had done, establish minimum funding requirements and then provide state aid to bring the poorest districts up to that level; but it had no obligation to raise those districts to the funding level of richer districts or force the wealthier districts to cut back on the amount they spent. Education had always been a state matter and, aside from overt constitutional violations such as racial segregation or the imposition of religious activities, control of education should remain in state and local hands.

This view also informed the justice’s vote in other education cases. He wrote a strong dissent in Mississippi University for Women v. Hogan, 458 U.S. (1982), in which the majority, led by Justice O’Connor, ordered what had been primarily a women’s school of nursing to admit a male student and to end its policy of gender segregation. The decision, based on the Civil Rights Act of 1964, offended Powell in several ways. He believed that the law allowed traditional single-sex schools to remain as such. He wrote in praise of the educational benefits found in single-sex schools, but above all, he believed that as long as an alternative existed for male nursing students, then the state should decide whether it wanted to continue a single-sex school. Neither the Constitution nor the civil rights law required that principles of federalism in the control of education be overridden.

Justice Powell’s belief in local control led him to leave disciplinary matters in the hands of local school authorities (Ingraham v. Wright, 430 U.S. 651, 1977) and also to determine what books should or should not be in a school library (Board of Education v. Pico, 457 U.S. 853, 1982). Nonetheless, perhaps an example of what Justice O’Connor termed his sacrificing of consistency for the sake of justice, is his vote in the rather remarkable case of Plyler v. Doe, 457 U.S. 202 (1982). There he concurred with Justice Brennan upholding the right of minor children of undocumented aliens to receive a free public school education. But in his concurrence the justice re-emphasized his views in Rodriguez—namely, that education was not a fundamental right. Instead he spoke to the practical concerns of the issue and the profound consequences of denying educational opportunity to thousands of children who, in all likelihood, would grow up and continue to live in the United States.

In criminal justice, Justice Powell also adopted a balancing approach. He often took a ‘‘tough’’ stance in favor of the police forces and believed that the Bill of Rights did not require the nation to sacrifice public safety. He therefore opposed what he considered excessive multiple habeas corpus appeals in Stone v. Powell, 428 U.S. 465 (1976); Wolff v. Rice, 428 U.S. 465 (1976); and United States v. Janis, 428 U.S. 433 (1976). While he believed strongly in procedural fairness, he also felt that constitutional safeguards had to be interpreted in a common-sense manner and thus joined his vote to create the ‘‘good faith’’ limitations on the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984).

Although he was an opponent of the death penalty, Justice Powell’s jurisprudence required deference to legislative policy-making absent any clear constitutional prohibition. He was one of the four dissenters in Furman v. Georgia, 408 U.S. 238 (1972), which outlawed Capital Punishment as then applied. In his dissent he attacked the majority for what he termed their flagrant disregard of the ‘‘root principles’’ of precedent, judicial restraint, separation of powers, and federalism. When every state that had the death penalty revised its statutes to conform to the Furman decision, Justice Powell, in the lead opinion for the seven-to-two majority in Gregg v. Georgia, 428 U.S. 153 (1976), upheld the right of the legislatures to impose Capital Punishment as long as they adhered to due process of the law.

In the 1979 case of Gannett Co. v. DePasquale, 443 U.S. 368 (1979), a split Court rejected a newspaper publisher’s challenge to a court order closing the courtroom to the press during a trial. Although concurring in the result, Justice Powell wrote separately to examine the First Amendment implications and suggested that in order to ensure a fair trial, courts ought to find other means than barring the press. The absence of the press, he believed, undermined the public’s confidence in the fairness of the criminal justice system. The following year, seven members of the Court adopted his view in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and held that while a defendant was entitled to a fair trial, the public also had a right, as exercised through the press, to witness the trial and judge its fairness for themselves.

Justice Powell’s fifteen years on the bench created what had long been absent on the Court: an influential center. He more often than not was the key vote in five-to-four decisions and was rarely on the losing side. In Bakke he constituted the middle by himself. By the time he retired, Sandra Day O’Connor stood poised to take over that role, and she was soon joined by others. Justice Powell’s case-by-case analysis and his balancing of facts and interests do not provide the stuff of a consistent jurisprudence. But in terms of civil liberties, they allowed him on more than one occasion to choose justice over doctrinal consistency.

MELVIN I. UROFSKY

References and Further Reading

• Gunther, Gerald, A Tribute to Lewis F. Powell, Jr., Harvard Law Review 101 (1987): 409.
• Jeffries, John Calvin. Justice Lewis F. Powell, Jr.: A Biography. New York: Scribner’s, 1994.
• Wilkinson, J. Harvie, III. Serving Justice: A Clerk’s View. New York: Charterhouse, 1974.

Cases and Statutes Cited

• Board of Education v. Pico, 457 U.S. 853 (1982)
• Bowers v. Hardwick, 478 U.S. 186 (1986)
• Brown v. Board of Education, 347 U.S. 483 (1954)
• Edwards v. Aguillard, 482 U.S. 578 (1987)
• Frontiero v. Richardson, 411 U.S. 677 (1973)
• Furman v. Georgia, 408 U.S. 238 (1972)
• Gannett Co. v. DePasquale, 443 U.S. 368 (1979)
• Grand Rapids School District v. Ball, 473 U.S. 373 (1985)
• Gregg v. Georgia, 428 U.S. 153 (1976)
• Ingraham v. Wright, 430 U.S. 651 (1977)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Massachusetts v. Sheppard, 468 U.S. 981 (1984)
• Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)
• Mueller v. Allen, 463 U.S. 388 (1973)
• Plyler v. Doe, 457 U.S. 202 (1982)
• Regents of the University of California v. Bakke (1978)
• Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)
• San Antonio School District v. Rodriguez, 411 U.S. 1 (1973)
• Stone v. Powell, 428 U.S. 465 (1976)
• United States v. Janis, 428 U.S. 433 (1976)
• United States v. Leon, 468 U.S. 897 (1984)
• Wolff v. Rice, 428 U.S. 465 (1976)