What would Justice Powell do? The 'alien children' case and the meaning of equal protection.

• Author: Greenhouse, Linda

The debate over national immigration policy is at fever pitch. Harsh anti-immigrant rhetoric dominated the discourse during the early Republican presidential primaries. Congressional gridlock has led states and cities, many far from the border, to take matters into their own hands by enacting laws or adopting policies aimed at encouraging immigrants to leave the jurisdiction by penalizing those who would employ or rent to them. (1) During the 2007 legislative sessions, 46 states enacted 244 immigration-related measures, triple the previous year's number.(2) The one predictable outcome of this activity has been litigation. (3)

The immigration conflagration of today is hardly a new phenomenon in United States history. It mirrors, albeit with greater intensity and on a larger scale, the immigration brushfires of the 1980's, when Congress responded to mounting calls for action by passing the Immigration Reform and Control Act of 1986, (4) which for the first time imposed civil and criminal liability on employers who knowingly hired immigrants who lacked legal authority to work. Well before Congress acted, states had begun to take matters into their own hands. In 1975, Texas passed a law providing that alien children not legally admitted into the United States were not entitled to a free public education. (5)

The Supreme Court struck down the Texas law on June 15, 1982, ruling that a state offering a free public education to the children of citizens had to provide the same opportunity to the alien children of undocumented immigrants. Justice Brennan, writing for the 5 to 4 majority in Plyler v. Doe, (6) said that a statute that imposed "a lifetime hardship on a discrete class of children not accountable for their disabling status" while failing to serve any "substantial" countervailing state interest violated the 14th Amendment's guarantee of equal protection. (7)

Justice Powell concurred. "I agree with the Court that ... children should not be left on the streets uneducated," the former chairman of the Richmond, Va. school board and former president of the Virginia State Board of Education wrote in his five-page opinion. (8) In what became the decision's best-known line, Powell added: "A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment." (9)

At the United States Department of Justice, within hours of the decision's announcement, two young special assistants in the office of the attorney general delivered a highly negative analysis to Attorney General William French Smith. They made clear not only their dismay with the ruling, but also their conclusion that Solicitor General Rex E. Lee's failure to have placed the Reagan Administration's weight behind the state's defense of its law contributed significantly to the disappointing outcome. (10)

"[T]his is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have," John G. Roberts Jr. and Carolyn B. Kuhl told the attorney general. (11) The two added: "It seems likely that the dissenting Justices had particularly tried to win over Justice Powell, but were unable to do so.... It is our belief that a brief filed by the Solicitor General's Office supporting the State of Texas--and the values of judicial restraint--could well have moved Justice Powell into the Chief Justice's camp and altered the outcome of the case."

The analysis was provocative, particularly in light of the subsequent career path of one of its authors. But it was almost certainly wrong.

Justice Powell's papers, housed at his alma mater, Washington and Lee University Law School, show that while he found the case "extremely difficult" as a matter of legal doctrine, as he wrote to his law clerk while preparing for oral argument, (12) he sought from the very beginning of his consideration to find a way to safeguard the plaintiff children's interest in receiving an education. It is extremely unlikely that a more strongly worded brief from the Solicitor General would have led him to abandon a deep conviction, based on his lifelong involvement in public education, that the Texas law was detrimental not only to the children at whom it was aimed, but to society at large.

Still uncertain of how an opinion should be framed, Powell had concluded by the date of the argument, Dec. 1, 1981, that the statute must fall. He expressed that view at the justices' conference three days after the case was argued. According to the hand-written outline of his views, which he drafted in preparation for the conference, Powell said that children "barred from all primary and secondary education" were a "helpless class," a "'discrete' minority without access to political process." As for how the opinion should be written, he said, "The standard of analysis should be one of heightened (but not strict) scrutiny.'" (13)

Notes taken at the conference by both Justices Brennan and Blackmun confirm that Powell's participation followed his outline as he cast one of the five votes to affirm the judgment of the United States Court of Appeals for the Fifth Circuit that the statute was unconstitutional. The Mexican-born children on whose behalf the class-action lawsuit had been brought "have no responsibility for being there," Powell said, according to Brennan's notes. It was "hard to think of [a] category more helpless than children of illegal aliens." Powell then stated, however, what was certainly obvious to his colleagues: that he did not view education as a "fundamental right," a position he had expressed for the Court eight years earlier in his majority opinion in San Antonio Independent School District v. Rodriguez. (14) But, he added, as long as the state chose to provide an education to "some children," he did not see how it could deny the same benefit to others. (15)

Nonetheless, the two Justice Department lawyers were not completely off base in intuiting that Justice Powell had indeed been at the center of a struggle during the six and one-half months between the date the case was argued and the date it was decided. There were two senses in which this was true. There was the struggle by the Court's master tactician, William Brennan, through successive opinion drafts, to craft an opinion that Powell could sign in full, as opposed to merely concurring in the result, an outcome that would have deprived the Court of a majority voice. And there was a second struggle, within the mind and heart of Lewis Powell himself. "I have agonized over this case more than a little," he would write to Brennan two months into the effort by the two men to find common ground, at a point when it was far from clear that the effort would succeed. (16)

It did succeed, and a quarter-century later, the story of Plyler v. Doe is worth recapturing if only for the timeliness of its subject and the essential drama of how the opinion was produced through a polite but firm test of wills between two very different Justices who shared a common goal. The story allows us to pull back the curtain and observe the Supreme Court as we would hope it to be but fear that too often it is not, a place where Justices of decidedly different persuasions can work with mutual respect to find common ground in addressing some of the country's most intractable disputes.

And it is worth reflecting, as well, on the particular role played by Lewis F. Powell Jr. He was the "swing Justice" of his time, before that mantle passed, following his retirement in 1987, to Justice O'Connor. Lewis Powell had never been a judge before his appointment to the Court in 1971 at the age of 64. A leader of many different institutions--a large corporate law firm, a school board, Colonial Williamsburg, the American Bar Association-he brought a pragmatic problem-solving focus to his new environment, responding instinctively rather than doctrinally to some of the hardest cases that reached the Court. (17) In Plyler, he struggled to reconcile a profound sense of fairness with a tightly bound view of the judicial function. Born in 1907, a gentleman of the old South, Lewis Powell may appear to us now as someone from a long-ago era, a kind of judicial Everyman whose response to Plyler v. Doe can be seen as a mirror of how a basically conservative, fair minded citizen of his day, who happened to be a Supreme Court Justice, might have responded to the policy concerns that animated the case.

Today's Supreme Court, of course, is very different, deeply polarized and lacking a single Justice who had not previously served as a judge on a federal court of appeals. Insistence on doctrinal purity seems to be the order of the day, as reflected in the inability of Chief Justice Roberts, for the plurality, and Justice Kennedy, concurring in the judgment, to reach common ground in the 2006 Term's school integration case, Parents Involved in Community Schools v. Seattle School District No. 1. (18) When a major immigration case next reaches the Court, as one will, we shall see whether the story of Plyler v. Doe is of more than merely historical interest. But it is surely at least that.

II

Justice Powell responded to the Texas statute not only as a Supreme Court Justice, but as one who had devoted years of his life to education, which he regarded as essential to the democratic enterprise. "It is difficult to conceive of someone who could have had a more intimate knowledge of all facets of American education than the Honorable Lewis Franklin Powell, Jr.," in the words of one scholar of education law who deemed Powell "the education Justice" in a published appraisal in 2001. (19) Powell's interest in the subject was manifest throughout his judicial career; he wrote either for the Court or separately in 51 educationrelated cases, including, most famously, his controlling separate opinion in Bakke, four years before...