Lewis F. Powell, Jr.

Lewis F. Powell, Jr.

Description

Supreme Court Justices, at least in the modern era, have not been drawn from the ranks of the nation's preeminent practicing lawyers. The path to the Court has not been a brilliant career in practice but success In politics, government service, or, increasingly, service on a lower court bench. Earl Warren and Hugo Black came to the Court directly from electoral politics. William Douglas, Byron White, Arthur Goldberg, and William Rehnquist each held appointive office in the executive branch immediately preceding appointment to the Court. William Brennan, Potter Stewart, Harry Blackmun, Warren Burger, John Paul Stevens, Sandra Day O'Connor, David Souter, Antonin Scalia, and Anthony M. Kennedy all served as lower court judges in the state or federal systems for varying periods before being promoted to the Court. While each recent appointee practiced law at some time before being chosen for the Supreme Court, only two—Lewis F. Powell, Jr., and Thurgood Marshall—can be said to have earned a place on the Supreme Court because they were consummate practitioners of the lawyer's art. Thurgood Marshall was one of the nation's leading civil rights lawyers before entering public life. But his civil rights experience differed dramatically from Lewis Powell's corporate practice. As counsel to a broad social movement, Marshall looked to the courts for change. He sought sweeping doctrinal assistance designed to aid a category of similarly situated persons, only some of whom were actually before the Court. As a business lawyer, Powell viewed the law not as an engine of social reform or as politics by another name but as an analytically precise aid in resolving disputes in a predictable, pragmatic manner. For Powell, the law was a stable matrix within which to plan future action. Moreover, as a superb business lawyer, he understood that the enduring resolution of an ongoing dispute must, whenever possible, respect the core interests of each participant. Justice Powell was shaped by lawyer Powell. The cast of mind and habits of thought he cultivated during 35 years of successful private practice followed him to the Supreme Court. During his 15-year tenure from January 7, 1972, to June 26, 1987, Justice Powell authored more than 500 opinions, 254 of them for the Court. His lawyer's instinct for the pragmatic center repeatedly positioned him in the role of swing justice, mediating between the Court's ideological wings. Operating from the center, Powell often cast the balance-of-power vote that controlled the Court. His knack for being on the winning side never dropped below 80 percent in any term, and often exceeded 90 percent. In the 30 often closely divided religion clause cases in which Powell participated, he was on the winning side in every one. As a justice, Lewis Powell was cautious, precise, pragmatic, skeptical of bright line distinctions and doctrinaire solutions, mistrustful of governmental interference in private affairs, and, above all, committed to rigorous logical analysis as an aid to predictability and a guarantor of principled decision-making. In short, the very model of a modern private lawyer. His characteristic approach was to focus on the actual facts of the case before him; to identify with precision the competing interests of the parties; and, if possible, to evolve a moderate solution respectful of the core concerns of each. Only after he satisfied himself that the core concerns of the parties were in irreconcilable conflict would he openly balance one set of interests against the other and determine which should take precedence. Such a balancing process is, of course, necessarily subjective. In Justice Powell's case, it reflected a personal reluctance to substitute his judgment for the judgment of legislators and administrative officials—unless deeply felt traditional values such as free speech, family life, or property rights were threatened. When Powell perceived a threat to traditional values, he did not hesitate to use the full power of the judiciary in their defense. At several critical junctures in his tenure on the Court, however, Powell declined to lend his support to efforts to extend the Constitution's protection in nontraditional directions. Two pairs of cases illustrate Justice Powell's complex and enigmatic constitutional jurisprudence. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), he declined to recognize education as a fundamental right or wealth as a suspect classification, upholding the exclusive use of local property taxes to fund public education despite the resulting wide disparities in educational resources available in rich and poor neighborhoods. But in Plyler v. Doe, 457 U.S. 202,239 (1982) (Powell concurring), he ruled that education was so important that states could not bar the children of undocumented aliens from the public schools. Similarly, in Moore v. City of East Cleveland, 431 U.S. 494 (1977), Powell trotted out the heavy artillery of substantive due process to protect the constitutional privacy rights of members of an extended family to live together. But in Bowers v. Hardwick, 478 U.S. 186 (1986), Powell's crucial concurrence was the fifth vote that declined to grant constitutional privacy rights to homosexuals.

Source Publication

Justices of the United States Supreme Court: Their Lives and Major Opinions

Source Editors/Authors

Leon Friedman, Fred L. Israel

Publication Date

2013

Edition

4

Volume Number

IV

Lewis F. Powell, Jr.

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