Justice Lewis F. Powell, Jr.: A Biography.

• Author: Tushnet, Mark V.

1. INTRODUCTION

   John Jeffries's(1) respectful biography of Justice Lewis F. Powell carefully describes how Powell found himself at the Supreme Court's center during his tenure. He was "the Supreme Court's center of gravity" (p. 404) and its "guiding spirit" (p. 405). Jeffries's work also provides an opportunity to reflect on the kind of centrism Powell endorsed -- or, perhaps better, embodied. Powell "instinctively recoiled from extreme positions" (p. 409); his centrism was so deeply a part of his persona that he hardly chose it in the way the term endorsed suggests. As Powell became more comfortable in his judicial role, the balance that his centrism expressed turned out to be a rather direct reflection of his own views about what constitutes sound public policy.

   His record on the Supreme Court demonstrates the limits of the social vision of the class he represented. Powell came from a relatively well-to-do background in the solid white Virginia middle class. His family was neither rich nor grindingly poor, though it experienced some tight moments during economic downturns. Powell's talents and his drive to achieve, which Jeffries stresses throughout, propelled him to the upper echelon of corporate America. For example, Powell's support for abortion rights, qualified by his refusal to find unconstitutional limits on public funding for abortions, reflects his experience with people who needed access to abortions and could locate private resources to pay for them, rather than experience with equally needful people who could not locate the necessary private resources. Powell's jurisprudence of balancing may be suitable only for a Court whose members have a more capacious social vision than Powell. Perhaps Justices like Powell would do better if they adhered to a more formalist jurisprudence, in which adherence to rules screens out some considerations that a "balancer" might take into account. Of course, the particular rules a formalist followed would matter a great deal; the hope, however, would be to develop rules that screen out invidious considerations that, perhaps subconsciously, influence a balancer's decisions.

   To Jeffries, Powell was a "pragmatic conservative" (p. 470), whose opinions were a "mosaic of accommodation, highly differentiated and strongly variegated but of a generally conservative hue" (p. 403). Jeffries shows, however, that Powell's views on his judicial role changed somewhat during his tenure. Arriving at the Court essentially untutored in constitutional law, Powell began with his instinctive conservatism, which took the form of an undifferentiated posture of "judicial restraint" that he invoked in nearly all contexts without serious consideration of the possibility that restraint might be appropriate in some contexts but not others. As he gained experience, Powell became more confident in the propriety of judicial activism -- at least when its results fit within his social vision (pp. 425, 499). As Jeffries puts it, "[t]he principle [of restraint] declined into an attitude" (p. 425).

   In his analysis of Powell's work on the Supreme Court, Jeffries primarily concentrates on abortion, race relations, and capital punishment cases.(2) Because Jeffries limits his treatment of the Court's work so severely, his picture of Powell's centrism is slightly out of focus.(3) By examining some materials Jeffries omits, I hope to adjust the focus in a way that brings out more clearly the limits of Powell's jurisprudence.

   Describing a case early in Powell's tenure,(4) Jeffries writes that Powell had "no interest in mak[ing] a deal" (p. 304) about what the law was or should be. Elsewhere, however, Jeffries shows Powell working with his colleagues to formulate a position acceptable to enough of them to constitute a majority or a plurality. So, for example, in the 1976 death penalty cases,(5) Powell worked with Justices John Paul Stevens and Potter Stewart to uphold death penalty statutes that, in their view, sufficiently limited the states' discretion in the administration of the death penalty.(6) Powell seems to have "made deals" in such instances, but close examination of Powell's actions shows that Jeffries is right: Powell rarely negotiated over opinions, in part because his position at the Court's center meant that his colleagues had to move to meet him, and in part because his perception of himself as a centrist led him to believe that the law must be what he thought it was. I use two cases, one quite obscure and one of renewed importance today, to illuminate Powell's jurisprudence of centrism.

2. MURGIA AND RESHAPING POWELL'S ROLE

   In Massachusetts Board of Retirement v. Murgia,(7) the Court rejected an equal protection challenge to a Massachusetts statute requiring all state police officers to retire at the age of fifty. Although the published majority opinion occupies only ten pages in the United States Reports, it resulted from an extended controversy within the Court that, in my view, affected Powell's understanding of his place on the Court's political and jurisprudential spectrum.

   The majority agreed that the statute at issue in the case should be subject only to minimum scrutiny or rationality review.(8) Chief Justice Warren Burger assigned the opinion to Justice William J. Brennan, probably believing that Brennan could do nothing in the opinion to advance the liberal cause. Brennan circulated a draft of the opinion in January of 1976 that immediately set Justice William Rehnquist on edge. Brennan used the occasion to reinterpret the Court's recent rationality review cases. Gerald Gunther had pointed out that the rationality review test the Court seemed to apply in its previous cases actually had some "bite" because several of the statutes invalidated in those cases could readily be justified by some imaginable state purposes.(9) Brennan's reformulation of rationality review attempted to incorporate those cases in a new, more flexible standard.

   Rehnquist tried a preemptive strike. Explaining that he would not write a separate opinion for "a couple of weeks," Rehnquist sent Brennan a letter "for [his] benefit (?)" expressing concern about the way in which Brennan stated the standard of rationality review, which would, in Rehnquist's view, "give the courts more leeway in striking down state legislation."(10) Although Brennan drew his standard -- "reasonable, not arbitrary, and ... [resting] upon some ground of difference having a fair and substantial relation to the object of the legislation"(11) -- from prior cases, Rehnquist thought that Brennan had transformed its meaning, particularly by restating the test to require a relationship between the law at issue and "the state's announced objective."(12) For Rehnquist, the standard "ought to be simply stated and ought to virtually foreclose judicial invalidation except in the rare, rare case where the legislature has all but run amok and acted in a patently arbitrary manner."(13)

   In his February 9 reply, Brennan agreed that his draft did indeed offer "a more flexible rule" of the "minimum scrutiny" standard than Rehnquist supported, but he argued that the Court's cases had "evolved" to the point his draft described.(14) Brennan pointed out that he could not explain several recent cases by relying on as loose a standard as the one Rehnquist suggested. The fair-and-substantial-relation standard, Brennan wrote, came from another half-dozen cases, which, although "fall[ing] into the twilight zone of equal protection," were "part of the warp and woof of equal protection law."(15) Furthermore, though he thought that he and Rehnquist might disagree on whether courts should judge a statute only in relation to the purposes the state articulated, Brennan considered it unnecessary to determine in Murgia whether the Court should come up with purposes if the state had not; here, he said, the state had articulated a purpose sufficient to justify the statute.(16)

   Brennan circulated his correspondence to the other Justices on February 12 with a cover letter stating that Rehnquist's position was "at odds with statements in a number of equal protection cases ... over the past half century."(17) Perhaps because the correspondence clarified Brennan and Rehnquist's disagreement about the appropriate amount of flexibility in the minimum rationality standard, the case made "little progress" toward disposition for a month.(18)

   Meanwhile, a side issue -- the political participation of the affected group -- had come to distract some Justices. In explaining why the mandatory retirement statute did not have to satisfy any strict standard of review, Brennan referred to "the political clout of the aged."(19) Justice Harry Blackmun thought that lack of "political clout" might justify more stringent review, but he was "hesitant to go beyond that."(20) Though Justice Powell agreed with "much" of Brennan's reasoning, he too rejected what he called Brennan's "central position that a high degree of political participation in itself is sufficient to support the conclusion that those of middle age do not form a suspect class."(21)

   By the beginning of April it seemed that Brennan's opinion might not get a single additional vote. Powell circulated an opinion attempting to flesh out in some detail an analysis of political power adequate to the case. In the first section of the opinion, Powell claimed that neither "high numerical representation" nor "the existence of a body of remedial legislation" was enough to "remove a group that displays the other indicia" from the "suspect" category.(22) He argued that relying on remedial legislation, for example, "could penalize those who properly seek legislative rather than judicial solutions to problems of discrimination."(23) Nonetheless, Powell offered other reasons why the Court should not apply heightened scrutiny in this case; because the statute forced retirement at age fifty, it encompassed more than "the elderly."(24)...