Powell, Lewis F., JR. (1907–1998) (Update)

• Author: Richard Fallon
• Pages: 1976-1980

Page 1976

From his appointment in 1971 until his resignation in 1987, Lewis F. Powell, Jr. was widely known as the "swing

Page 1977

Justice" on a closely divided Supreme Court. As the term "swing Justice" implies, Powell's position on the Court was one of both loneliness and influence. The loneliness resulted because Powell lacked a stable set of allies on many of the most contentious issues that came before the Court. The influence stemmed largely from his capacity to make 5?4 majorities. In cases involving AFFIRMATIVE ACTION, ABORTION, CAPITAL PUNISHMENT, and the FIRST AMENDMENT, Powell's finely nuanced positions caused him to move back and forth between coalitions of Justices whose decisions depended less on the peculiar facts of individual controversies.

After a Justice has retired from the Court, his influence, if any, must depend on the power of his written opinions and his judicial philosophy to command respect. The question of Powell's long-term influence remains unsettled. With regard to the resolution of specific cases, Powell's successor, ANTHONY M. KENNEDY, has contributed to a perceptible conservative drift by the REHNQUIST COURT, including erosion of some of the doctrines to which Powell was committed. In addition, Powell's characteristic "balancing" philosophy, which emerged as perhaps the Court's predominant methodology during his tenure, has recently attracted sharp criticism.

Lewis F. Powell joined the Supreme Court at the age of sixty-four after thirty-five years of successful private practice in the state of Virginia. The son of well-to-do parents, Powell graduated from Washington and Lee College in 1929 and, just two years later, finished first in his class at Washington and Lee Law School. After a year of graduate study at Harvard Law School, Powell returned to Richmond and joined the prestigious firm of Hunton, Williams, Gay, Powell, and Gibson, where, with time out for military service during World War II, he remained until 1971.

Powell achieved unusual eminence as a private lawyer. Besides winning the trust and respect of clients and serving on the boards of directors of eleven major corporations, Powell became active in a variety of lawyers' groups, including the American Bar Association, which he served as president in 1964?1965. Powell also took a leading role in a number of civic and cultural organizations. He was chairman of the Richmond school board from 1952 to 1961.

The Lewis Powell who took his seat on the Supreme Court in 1971 very much reflected his background and his experiences. In addition to possessing an acute analytical intelligence, he had a business lawyer's disposition to resolve disputes pragmatically, preferably in a way that would accommodate the reasonable interests of all parties. He also had a conservative respect for established institutions. Yet Powell was more than the archetype of the successful conservative lawyer. As chairman of the Richmond school board, he had resisted efforts by the Virginia political establishment to close public schools rather than accept racial DESEGREGATION. And as vice-president of the National Legal Aid and Defender Society, he had worked to support publicly financed legal services for the poor.

Not surprisingly in light of his background, a respect for institutions of local government and especially for local school administration represented a consistent theme in Powell's Supreme Court opinions. Although cautious and nonideological in some areas, he consistently and even aggressively sought to protect state sovereignty interests under both the TENTH AMENDMENT and the ELEVENTH AMENDMENT. As a matter of "equitable restraint," he held that federal courts should virtually never interfere with proceedings before state courts and administrative agencies. And he favored the recognition of protective "immunities" for government officials whose official conduct entangled them in suits for money damages. Without such immunity, Powell reasoned in Harlow v. Fitzgerald (1982), able men and women would hesitate to accept positions of public responsibility. Powell also wrote germinal opinions in the field of STANDING that had as their effect, if not their explicit purpose, the preclusion of lawsuits challenging the constitutionality of programs and policies?including those of LOCAL GOVERNMENTS?whose effects were widely dispersed across large numbers of citizens. "Generalized grievances," he argued in an influential CONCURRING OPINION in Schlesinger v. Reservists (1974) and later for a majority of the Court in Warth v. Seldin (1975), should generally be resolved in the legislature and at the ballot box, rather than by the nondemocratic federal courts.

The theme of deference to local political decision makers sounded particularly loudly in one of the earliest of Powell's major opinions, SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ (1973). At issue in Rodriguez was the constitutionality of Texas's system of school funding, which relied heavily on local property taxes to finance public EDUCATION and, as administered, created a large disparity between the per-pupil expenditures in rich and poor school districts. The plaintiffs claimed that the disparate allocations offended the EQUAL PROTECTION clause. Justice Powell, who wrote for a five-member majority, disagreed. Education was not a FUNDAMENTAL RIGHT in the constitutional sense, he ruled, nor did a law disadvantaging students in impecunious school districts...