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Justice Powell Jr. participated in 2430 cases.
Joined with Majority1923
Concurring in Judgment112
Did Not Participate204
Judgment of the Court12
Jurisdictional Dissent1

Powell, Lewis Franklin Jr.

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Birth: September 19, 1907, Suffolk, Virginia.

Education: Washington and Lee University, B.S., 1929; Washington and Lee University Law School, LL.B., 1931; Harvard Law School, LL.M., 1932.

Official Positions: Chairman, Richmond School Board, 1952–1961; member, 1961–1969, and president, 1968–1969, Virginia State Board of Education; president, American Bar Association, 1964–1965; president, American College of Trial Lawyers, 1968–1969.

Supreme Court Service: Nominated associate justice by President Richard Nixon, October 22, 1971, to replace Hugo L. Black, who had retired; confirmed by the Senate, December 6, 1971, by an 89–1 vote; took judicial oath January 7, 1972; retired June 26, 1987; replaced by Anthony Kennedy, nominated by President Ronald Reagan.

Death: August 25, 1998, Richmond, Virginia.

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Lewis Franklin Powell Jr.
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Lewis Franklin Powell Jr.

A reluctant nominee who had repeatedly removed himself from consideration, Lewis F. Powell Jr. ultimately yielded to the entreaties of Solicitor General Erwin Griswold, Attorney General John N. Mitchell, and Sen. Harry F. Byrd Jr., D-Va., in October 1971 to accept nomination by President Richard Nixon to succeed Justice Hugo L. Black. Given the ABA Committee on Federal Judiciary's highest rating as “the best qualified available,” Powell was unanimously and enthusiastically approved by the Senate Judiciary Committee, and the full Senate followed suit briskly by confirming him 89–1 on December 6. The sole dissenter was a maverick one-term Democratic senator from Oklahoma, Fred R. Harris, who opposed the nominee as “an elitist who has never shown any deep feeling for little people.”

Nothing could have been further from the truth. The sixty-four-year-old Powell, although to the manner born and destined to reap a very considerable fortune in his long and productive legal career, had dedicated significant aspects of his life to the socio-economic and political enhancement of the less fortunate; and his record on the bench amply and poignantly demonstrated his concerns for “little people.” His jurisprudence was governed by his concern for fairness, compassion, equity, and a desire for genuine societal consensus. Powell quickly came to be regarded as the conscience of the Court on emotion-charged issues such as race and gender, as well as the omnipresent contentious questions of religion, suffrage, and criminal justice. He prevailed on the side of justice, as he interpreted it, by casting the decisive vote in 5–4 opinions in a host of closely contested cases. Law professor Herman Schwartz, writing in The Nation, called him “the most powerful judge of his time,” and U.S. News & World Report noted that Powell's “courtly manner …. failed to disguise the immense power he wielded.”

Not all new members of the Court deliberately pattern themselves on predecessors, although often they evince jurisprudential commitments or practices that trigger comparisons. Powell, however, clearly and consciously endeavored to emulate the second John Marshall Harlan and, to a lesser degree, Felix Frankfurter. But Harlan was his judicial hero. Powell had known him personally, and he respected and admired him philosophically and jurisprudentially. In considerable measure, Powell's career on the Court reflected Harlan's approach to adjudication and intepretation—centrist, moderately to conservatively cautious, and historically aware. But given Powell's conscience-driven stances on pressing civil rights and liberties issues such as racial and gender discrimination and abortion, it is obvious that his jurisprudence was considerably less consistent than Harlan's. Powell more than occasionally violated Harlan's all but predictable embrace of Frankfurter's stance on judicial restraint, deference to the political branches of government, and all but commandment-like dedication to the principles of the separation of powers and of federalism. Powell's pragmatism, his “conscience” approach to adjudication, his bowing to a perceived need of “balancing of competing constitutional interests,” were at least partly un-Harlanesque. His frequent ally, Justice Sandra Day O'Connor, captured that fact well when, in a Harvard Law Review tribute to Powell on his retirement, she contended that “at times he may have been willing to sacrifice a little consistency in legal theory in order to reach for justice in a particular case.”

On the other hand, the Powell of the realm of economic proprietarian matters; of the suffrage, including reapportionment and redistricting; of criminal justice; of Tenth Amendment issues; of the reach of the federal interstate commerce power; and of access to the courts, especially the excessive utilization of the writ of habeas corpus, was vintage Harlan.

Arguably, the opinion for which Powell may well be most remembered is the “affirmative action” case of Regents of the University of California v. Bakke (1978), one that he himself viewed as seminal in the universe of racial discrimination. That he was given the assignment of writing the opinion would seem at first blush surprising, for although he had supported the central tenets of the public school desegregation case, Brown v. Board of Education (1954), he was no partisan of the all-out approach of activist jurists such as Earl Warren, William O. Douglas, or William J. Brennan Jr. As a gradualist and as a former state school board president, he consistently opposed mandated busing to achieve racial balance. And as a lifelong resident of Virginia, he was reluctant to have the judiciary become a (and certainly not the) leader in broad-scaled, imposed integration (as opposed to Brown-based desegregation). He expressed that view forcefully in pre-Bakke cases on race and the public schools such as Keyes v. School District No. 1, Denver (1973) and Milliken v. Bradley (1974), and in post-Bakke cases such as Columbus Board of Education v. Penick (1979) and Estes v. Metropolitan Branches of Dallas NAACP (1980).

Yet Lewis Powell had had no truck with those in his state who had called for “massive resistance,” a program designed to negate the holding in Brown and its implementation decision, Brown II (1955). Not-withstanding his place in Virginia's conservative establishment, he was opposed to continued segregation, and he publicly characterized the Byrd organization's antiDSupreme Court policy of “massive resistance” and “interposition” as “a lot of rot”—a strong statement for the normally kind and conciliatory Powell. It was he who mounted the opposition to those policies and ultimately succeeded in defeating them. As chairman of the Richmond Public School Board from 1952 to 1961, he provided the indispensable leadership for what proved to be the successful, disturbance-free desegregation of the city's public schools. It was not an easy task, but it earned him the support of the NAACP at the time of his appointment to the Court.

Bakke and its two components, known as Bakke I and II, reached the bench four years after the Court's failure to bite the proverbial bullet of “affirmative action/reverse discrimination” in DeFunis v. Odegaard (1974). In DeFunis, over Justice Douglas's eloquent dissent, the Court had mooted the issue because Marco DeFunis, already attending the University of Washington Law School under court order, would soon graduate. At the Court's conference following oral argument in Bakke, it became clear that neither Chief Justice Warren E. Burger nor Justice Brennan would be able to harness a majority, or even a plurality, for both aspects of the case. It fell to Powell to construct the two 5–4 opinions, and he accomplished it by creating an intriguing scenario. First, supported by the chief justice, John Paul Stevens, Potter Stewart, and William H. Rehnquist, he ruled that Alan Bakke—a rejected white applicant, who was more qualified to enter the University of California's Medical School at Davis than minority students who had been admitted on the basis of the 16 of 100 racial admissions quota established by the university—would have to be admitted because the racial quota constituted a violation of the Fourteenth Amendment's equal protection clause. Powell's four supporters, however, wanted the issue to be settled on statutory grounds—namely, that Title VI of the 1964 Civil Rights Act specifically barred discrimination on the basis of race to any government-subsidized institution, such as the University of California. Powell, however, insisted on constitutional grounds, for he feared that accepting the statutory basis would too strictly harness affirmative action initiative and experimentation, which he favored and which he explained in the second prong of his opinion.

In that part (joined by Brennan, Byron White, Thurgood Marshall, and Harry Blackmun) Powell upheld on constitutional grounds—the same equal protection clause—the significant concept of using race as a plus. He admonished, however, that it could be used only when a university had a “substantial interest” in a diverse student body “that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Therefore, over the angry objections of the Stevens group, the Powell-led majority in Bakke II in effect gave a green light to a host of innovative actions on the affirmative action/reverse discrimination front, and this despite his striking down of rigid racial or ethnic quotas.

The future proved the dissenters' dire prophecies to be generally correct. Indeed, Powell himself later proffered serious objections to the expansive interpretations given to what he had clearly intended to be a narrow holding. He was particularly disturbed by some of the Court's broad-gauged backing of the use of racial quotas in involuntary school busing—crying out in separate dissenting opinions in two leading cases, decided just one year after Bakke, that he was “profoundly disturbed” by this “creation of bad constitutional law.” Yet although he had never intended his Bakke holdings to give warrant to what he now decried and although it is clearly possible to distinguish among and between sundry racial quota cases, there is no doubt that his Solomon-like resolution has resulted demonstrably in an embrace of Bakke's permissive, but very little of its restrictive, mandate.

Perhaps that is why, in an un-Harlanesque manifestation, Powell, in evident inconsistency with Bakke, supplied the decisive fifth vote in United States v. Paradise (1987), narrowly upholding an Alabama federal district judge's orders of 1983 and 1984 requiring Alabama to promote one black state trooper for each white state trooper until the state could develop an acceptable promotion procedure. Brennan's plurality opinion was joined in full by Marshall and Blackmun, with Stevens and Powell penning separate concurrences. Powell's vote in favor of promotion quotas represented a clear departure from his contrary stance in Bakke, a fact of which he seemed to take note by explaining that a rigid quota was proper in this instance because it was “short in duration” and the “effect of the order on innocent white workers is likely to be relatively diffuse.” He also pointed to evidence that the state “had engaged in persistent violation of constitutional rights and repeatedly failed to carry out court orders.” In effect, Powell's crucial vote meant that strict racial quotas in both promotion and hiring would likely henceforth be upheld by the U.S. Supreme Court—as indeed they have generally been to date, with some exceptions. Moreover, his careful balancing in Bakke was reaffirmed by the Court in Grutter v. Bollinger (2003), the University of Michigan Law School affirmative action case.

In no area of constitutional law and interpretation was Lewis Powell more influential than in that of First Amendment issues involving the religion clauses—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first of these two phrases provided Powell with an unbroken string of triumphs. In the thirty leading cases that the Court decided during his tenure on the separation of church and state, he was on the winning side in every one of them. Nineteen of these found violations of the clause, and eleven sanctioned accommodation of sundry forms of government aid to religion. No other contemporary justice could boast of such a record. Fearful of the potentials of religio-political strife, he unfailingly sensed the appropriate stance for the good of society. Toward that end, and unlike several of his colleagues, he firmly embraced Burger's triad requirement articulated in Lemon v. Kurtzman (1971) even more consistently and more closely than its own author. That triad, still in existence, albeit somewhat embattled, requires that aid to religion provided by the government: (1) must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster an excessive entanglement with religion.

Powell was therefore willing to join the 5–4 majority that sanctioned a Minnesota law providing for an across-the-board tax deduction of up to $500 for parents of all elementary and up to $700 of all secondary school children for bona fide educational expenses, identified as “tuition, secular textbooks and instructional materials, and transportation.” Distinguishing Committee for Public Education and Religious Liberty v. Nyquist (1973), the majority opinion by Justice Rehnquist surprisingly gained Powell's vote, because Rehnquist claimed that the Minnesota law withstood separation of church and state challenges because it was “neutral” in design; it enabled parents of public school children as well as those in parochial and other private schools to avail themselves of the annual deduction (Mueller v. Allen, 1983).

On the other hand, Powell was in the 5–4 majority in Grand Rapids School District v. Ball (1985), which struck down a school board's authorization of public support for personnel, supplies, and materials furnished to private, mostly religious, schools. He joined another 5–4 majority in Lynch v. Donnelly (1984), which upheld the constitutionality of Pawtucket, Rhode Island's government-sponsored practice of displaying a cr?che as part of a Christmas display in a park owned by a nonprofit corporation in the heart of the city's shopping district. But he was in full agreement with the 7–2 majority in Edwards v. Aguillard (1987), which declared unconstitutional Louisiana's “balanced treatment” statute that required the teaching of creationism to balance that of evolution in its public school curriculum. There, in a concurring opinion that was vintage Powell, he movingly elucidated Jefferson's and Madison's labors in quest of a full measure of religious freedom and an utter ban on religious establishment.

Justice Powell's prior experience as school board chairman provided him a well-informed and pragmatically enlightened viewpoint on the many delicate matters involving public education the Court faced during his tenure. His background and many written opinions on this issue established him as a kind of education authority on the nation's highest tribunal. This was true not only in the area of desegregation, where his careful balancing led to the flexible affirmative action compromise in Bakke, but in other areas of education law as well. His careful, case-by-case approach, and his distrust of broad, bright-line legal rules in complex subject areas, was as evident in Powell's education jurisprudence generally as it was in Bakke. But for all his balancing of competing constitutional interests in those cases, he never lost sight of the central purpose of the schools themselves, namely: education. He was particularly loath to let abstract principles interfere with the practical pursuit of this purpose.

Perhaps the most important of Powell's many written opinions in public school cases came in San Antonio Independent School District v. Rodriguez in 1973. The case was a class action challenging the manner in which the state of Texas supported its local public schools partly through local property taxes. The suit claimed that the state's method violated equal protection by discriminating against children in poorer districts. Powell's opinion for the 5–4 majority proceeded cautiously, demonstrating respect for established precedents, the traditional distribution of state and local authority, and the complexity of the subject. He refused to break new constitutional ground by declaring education a “fundamental right,” and he declined the opportunity to launch a broad egalitarian legal revolution by declaring wealth a suspect classification. He was not persuaded that in an area as complex as education, levels of educational funding exactly paralleled levels of educational quality. Instead, Powell believed it was reasonable as well as constitutionally permissible for a state to establish a certain minimum funding level for local school districts, and to allow improvements beyond this level for those districts with the resources and the political will to fund them.

In reaching this conclusion, Powell sounded a common theme in his education jurisprudence. He emphasized that the kinds of complex decisions involved in state plans for funding education were precisely the kind that were most appropriate for resolution by those who have the local familiarity and the educational and administrative expertise to decide wisely. For this reason, these kinds of decisions were not appropriate for resolution by the courts, which, as he frequently pointed out, lack such familiarity and expertise.

Beyond obvious constitutional mandates and the manifest requirements of justice, Powell frequently showed a confirmed faith in the ways state or local authorities' political traditions had worked out their own modes of operation. He distrusted the ability of the federal courts to improve on these traditions by novel constitutional interpretations requiring broad federally mandated changes. His defense of local control over decisions affecting education was of a piece with his vigorous resistance to the court-ordered elimination of local political patronage and the old system of political parties.

Although Powell's jurisprudence in the education area emphasized local control, and although he did not agree that education was a fundamental right of constitutional proportions (and thus preserved his flexibility), he nevertheless adhered strongly to the position that an important function of the state is to make public education available to children. In his view, the balance of equal justice required that the state's responsibility for education weigh heavily against competing interests. He therefore concurred with Brennan's opinion for the Court in the remarkable case of Plyler v. Doe (1982), upholding the right of minor children of undocumented alien residents to receive a free public education, like all other children in Texas. Powell's concurrence, however, avoided the implication that education was a fundamental right, and instead emphasized the balancing of the practical concerns in the case, most especially the potential consequences of denying educational opportunity to thousands of children, many of whom were likely one day to become U.S. citizens. Powell also objected in principle to a state's penalizing resident children permanently because of their parents' immigration status, and he punctuated the point by indicating that he would take the same position if there were a similar complete denial of any other important state benefit, such as welfare assistance. He distinguished Rodriguez on this basis as well, pointing out that there was no question in that case of any child being denied an education, as there was in Plyler.

In yet another important equal protection case involving education, Mississippi University for Women v. Hogan (1982), Powell found himself in dissent when the Court ruled that a single-sex institution's admissions policy violated the Fourteenth Amendment's equal protection clause. Powell's opinion provides an important glimpse of his particular vision of the clause. For Powell, it was not a constitutional mandate for imposing an ideological uniformity of educational practice across the nation. Instead, it embodies a liberating spirit, which a wooden application would stultify. This view required a certain flexibility, careful attention to the facts of each case, and awareness of the potential consequences of a given decision. In Rodriguez, this had meant that beyond a basic minimum, the equal protection clause allows the state the freedom to experiment with educational funding formulas in accord with the will of the local electorate. Similarly, in his dissent in Hogan, Justice Powell stated that by

applying heightened equal protection analysis to this case, the Court frustrates the liberating spirit of the Equal Protection Clause. It forbids the State from providing women with an opportunity to choose the type of university they prefer.

Instead of reading equal protection as both a protective and liberating aspiration, the Court had, in Powell's view, protected nothing of value by its decision, and had instead simply eliminated one desirable alternative for the women of Mississippi. In effect, the Court's decision violated Powell's jurisprudential principles by ignoring the facts in deference to an unenlightened and unfortunate application of theoretical legal principle.

Finally, as a former school administrator, Powell was always sensitive to intrusion into the affairs of school management by a judiciary ill-equipped to do so competently. He wrote the opinion of the Court in Healy v. James (1972) and agreed with his fellow justices in finding that a school administration had violated a student's First Amendment rights, but Powell trod very carefully. Instead of holding broadly that the school administrators had no authority to deny recognition to a controversial student organization, he proceeded “with special caution, recognizing the mutual interests of students, faculty members, and administrators in an environment free from disruptive interference with the educational process.” He asserted that where the necessarily wide latitude for free expression threatens to collide with the equally necessary maintenance of order, the Constitution does not sweep one aside in deference to the other, but “strikes the required balance.” Although it would not be unlawful for school administrators to deny recognition to the student group in order to maintain order and discipline, according to Powell, the school would have to make an adequate showing that the proposed organization would likely act beyond mere speech, by disrupting the school's ability to function in an orderly fashion. In the specific case at hand, no such showing had been made, and the case was remanded for further hearing.

In Healy, Powell struck a soon-to-be-classic balance, a balance that looked not only toward the Court's constitutional doctrine but also to the details of the case, the competing interests that would be affected by the decision, and the purpose of the institution under scrutiny. Healy was not an especially difficult case, but Powell showed in his opinion for the Court that he was no ideological warrior. His opinion foreshadowed his continued cautious and balanced jurisprudence, and his view that the most important elements in a given case lay not in any overarching theory, but in the facts and in the practical consequences involved.

Because the facts were paramount, Powell frequently expressed the view that those who were most intimately familiar with them should be allowed the latitude to make the relevant policies. For example, in his dissent in Board of Education, Island Trees Free School District v. Pico (1982), he found that the Court's interpretation of the First Amendment to prohibit a local school board from removing certain books from a school library was “a debilitating encroachment upon the institution of a free people.” A school library, after all, was part of a school, and the people responsible for the education of the children should be allowed to decide what was appropriate for that education and what was not. Far from seeing it as government censorship, Powell viewed the book removal as an essential feature of educational policy. Therefore, like the selection of textbooks and the design of curriculums, these decisions should be for state and local school administrators to make, not for a federal court.

Similarly, Powell expressed the view that disciplinary regulations are best left to the states and local schools. He evidently did so not for ideological reasons, but because, on balance, he believed that such a disposition of responsibility would allow the schools to function best as educational institutions. He opposed requiring elaborate due process hearings prior to student suspensions, and he refused to extend the Eighth Amendment's cruel and unusual punishment prohibition to cover “paddling,” or corporal punishment, in the public schools. Speaking for a 5–4 majority, as he did so often, Powell observed in Ingraham v. Wright (1977) that history, tradition, the common law, and the decisions of most of the states dealing with the question permitted corporal punishment and prohibited only the use of excessive or unreasonable force. Against this factual background, he was unwilling to find that the mere use of some corporal punishment in the schools was “cruel and unusual.” Nor was he persuaded that the Constitution required additional procedural safeguards in administering nonexcessive punishment. It was certainly typical of his jurisprudence that in such cases Powell considered not only the rights of the persons who were complaining of harsh disciplinary measures, but also the important interests of other students and the local communities in an orderly school environment conducive to the school's purpose—providing students with an education.

Justice Powell's commitment to balancing societal and individual privileges and obligations under a written Constitution is appropriately illustrated by his approach to the universe of criminal justice. There, with an eye to the public's fear of burgeoning crime, he more often than not chose a “tough” stance on the side of what has often been characterized as the “peace forces” versus the “criminal forces.” He frequently evinced sympathy with the difficult tasks confronting law enforcement authorities, perhaps recalling Justice Robert H. Jackson's admonition in a famed dissenting opinion that there is no obligation “to turn the constitutional Bill of Rights into a suicide pact” (Terminiello v. Chicago, 1949).

Profoundly committed to procedural due process and the basic prerogatives of a fair trial, he nevertheless would not embrace a jurisprudence that allowed defendants and their attorneys “to play a game with the courts.” He was willing, for example, to provide his votes to trim excessive, multiple use of habeas corpus appeals arising from duly processed state cases such as Stone v. Powell, Wolff v. Rice, and United States v. Janis, all in 1976. Although not unsympathetic to claims of “unreasonable” searches and seizures (see his early contragovernment opinions for the unanimous Court in United States v. United States District Court, 1972, and similarly in Almeida-Sanchez v. United States, 1973), he had noteworthy limits. He was in the 1984 majorities that recognized a “good faith” limitation on the proscription of the introduction of illegally procured evidence in criminal proceedings, thereby narrowing the reach of the judicially created exclusionary rule in United States v. Leon and Massachusetts v. Sheppard. Similarly, he opted for the constitutionality of the composition of state juries that permitted convictions by 9–3, 10–2, and 11–1 verdicts in criminal cases (Johnson v. Louisiana and Apodaca v. Oregon, both 1972), while rejecting convictions by 5–0 and 5–1 juries in Ballew v. Georgia (1978) and Burch v. Louisiana (1979).

A personal opponent of capital punishment, he nevertheless remained true to his deferential approach to legislative power and consistently supported the option of capital punishment, provided due process of law had been followed. He was one of the four dissenters in Furman v. Georgia (1972), which seemed to outlaw capital punishment as then constituted, and he flayed the majority of five for what he viewed as a flagrant disregard of “the root principles” of precedent, judicial restraint, separation of powers, and federalism. His dissent proved to be prolegomenon to the Court's 7–2 reinstatement of the death penalty as a legitimate constitutional punishment, always provided the presence and application of due process of law. “We hold that the death penalty,” Powell wrote in Gregg v. Georgia (1976) in the controlling opinion jointly written with Stewart and Stevens, “is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offenders, and regardless of the procedure followed in reaching the decision to impose it.” To Powell, the death penalty was an appropriate “expression of society's moral outrage,” if that was what the people's representatives determined to write into law. No matter what his personal feelings may have been on the subject, he recognized that retribution is not only permissible, but a fundamental resolve of an orderly societal rejection of “self-help to vindicate wrongs.”

A close student of the purposes of the U.S. constitutional scheme, Powell remained acutely aware of its federal basis. He consistently and firmly rejected the notion that the Tenth Amendment ought to be regarded as a “mere truism,” and that in the event of conflicts with the national government it should a fortiori be the loser. Indeed, time and again he admonished his colleagues and the polity that the Tenth Amendment was in effect not only part and parcel of the Bill of Rights, but an “essential” one. It was a view that, with but rare exceptions, he customarily shared during his time on the bench, especially with Rehnquist and O'Connor.

That view achieved a surprising victory in National League of Cities v. Usery (1976), in which a 5–4 majority led by Justice Rehnquist endeavored to establish a protective states' rights doctrine against federal intrusion. At best, the effort lasted a mere nine years, but it represented a view with which Powell was wholly comfortable. In 1974 Congress had amended the Fair Labor Standards Act of 1938 to extend minimum wage and maximum hours provisions to cover all but a few employees of the fifty states and their sundry political substructures. A battery of cities and states joined the National League of Cities in a suit against the secretary of labor, alleging an unconstitutional application of Congress's power over interstate commerce to the detriment of the states' Tenth Amendment authority. The states had failed to prevail in the federal district court below, but they triumphed in the Supreme Court. Acknowledging the vast range of the congressional interstate commerce power, the majority nevertheless ruled that “there are limits upon the power of Congress to override state sovereignty even when exercising its otherwise plenary powers to tax or to regulate commerce which are conferred by Article I of the Constitution.” And, the majority opinion concluded: “We hold that insofar as the challenged amendments operate to directly replace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Article I, 0 8, cl. 3.”

Justice Powell's satisfaction with the gravamen of the Usery decision would soon be vitiated, however, largely due to a rather rapid change of mind by Justice Blackmun, who had concurred separately in that case. Now, in two cases that dealt with the imposition of federal rules and procedures over state regulatory powers, one involving the monitoring of a state's gas and electric public utilities (Federal Energy Regulatory Commission v. Mississippi, 1982) and the other the question whether a state had a right to impose an age limit of sixty-five on its fish and game wardens (EEOC v. Wyoming, 1983), Powell found himself in dissent. He simply could see no constitutional justification for the expansive reading of the interstate commerce powers that drew majority approval in these two cases, without some clearly expressed congressional preemption.

Yet it would be the 5–4 vote in Garcia v. San Antonio Metropolitan Transit Authority (1985) that served as the vehicle for Powell's most passionate articulation of what he viewed as constitutionally applicable states' rights under the Tenth Amendment. Because of Blackmun's change of position, Garcia in effect overruled Usery, the slim majority holding that the federal government's minimum wage and overtime requirements for state and local employees was constitutionally justifiable under the commerce clause. Powell was neither amused nor persuaded by this dramatic, speedy overturning of the Usery precedent. Dissenting for himself, Chief Justice Burger, and Justices Rehnquist and O'Connor, Powell produced a major articulation for the federalist faith, commencing with the statement that he dissented because “I believe this decision substantially alters the federalist system embodied in the Constitution.” He pointed out with passion that in the U.S. federal system “the States have a major role that cannot be pre-empted by the national government”; that the instant decision, like others of similar concerns, in effect reduced the Tenth Amendment to “meaningless rhetoric”; that it and its kindred rulings “eventually would eliminate the states as viable political entities.” With uncharacteristic gloom he wrote a brief concluding separate paragraph that bears quoting:

Although the Court's opinion purports to recognize that the States retain some sovereign power, it does not identify even a single aspect of state authority that would remain when the Commerce Clause is invoked to justify federal regulation.… As I view the Court's decision today as rejecting the basic precepts of our federal system and limiting the constitutional role of judicial review, I dissent.

Powell's defeat in Garcia was one of the few major losses he sustained during his distinguished career. His warm personality, wisdom, gentleness, and determination rendered him a highly successful consensus seeker and Court “marshaller,” and he secured more victories in close cases than any of his contemporaries. To a considerable degree, that accomplishment materialized because, although instinctively deferential and a true devotee of the Frankfurter-Harlan jurisprudence of judicial self-restraint, he was willing to bend to attain what he viewed as necessities to achieve fairness and justice. He did not believe in “justice at any cost” or “justice Ÿber alles,” as did Douglas, Brennan, or Thurgood Marshall, but he felt that justice in certain realms was incumbent upon society, including such areas as affirmative action, abortion, aspects of privacy (within limits), and separation of church and state. Largely because of his willingness to bend principle in these and related “wrench” issues in order to do “the right thing,” even if it had to be on an ad hoc basis, he carried the banner for progressive justice without in any sense pursuing a specific agenda, much less a radical one.

His instinct for what the people's conscience would both desire and need rendered him the pivotal justice during his years on the Court. The public, whether professional or lay, grew to understand the central role he played. He became without challenge the most popular and most revered member of the Burger Court. His decisive votes on the pressing issues of the day were the critical factor to the identity of his successor when age and ill health dictated his retirement in 1987. No wonder that the ensuing confirmation battle, initially involving U.S. Court of Appeals judge Robert H. Bork, would turn into one of the most protracted, and one of the ugliest, in two centuries of Supreme Court confirmation proceedings. The Powell “swing vote” devotees throughout the land feared that his successor would not be like the justice whom sundry retirement commentators labeled “the best justice.” History may not accord him that accolade, but it assuredly will view him as a man of splendid acumen, towering influence, absolute integrity, a superb consensus builder, a consistent winner on fundamental issues, and a lovely, compassionate human being.

When all is said and done, Powell lived up to his views on “the role of the Court,” which he had submitted as a prepared statement to the Senate Judiciary Committee's hearings on his confirmation in late 1971:

  1. A belief in the separation of powers; that courts should not encroach on the prerogatives of the legislative and the executive branches.

  2. A belief in the federal system of government.

  3. An attitude of judicial restraint.

  4. A respect for precedent, springing from a belief in the importance of continuity and predictability in the law.

  5. The need to decide cases on the basis of law and fact before the court.

  6. The responsibility of the Court to uphold the rule of law and to protect the liberties guaranteed by the Bill of Rights and of the Fourteenth Amendment.

Mr. Madison had expressed the fervent hope that the Supreme Court would be peopled by “giants.” Lewis F. Powell Jr. proved to be one.


One of his former law clerks, John Calvin Jeffries Jr., wrote a superb biography of Powell: Justice Lewis F. Powell, Jr. (1994). For a fairly accurate prognosis of Powell's behavior on the Court at the time of his appointment, see A.E. Dick Howard, “Mr. Justice Powell and the Emerging Nixon Majority,” Michigan Law Review 70 (1972): 445. Material on Powell can be found in Henry J. Abraham, Justices, Presidents and Senators (4th ed., 1999); Henry Abraham and Barbara A. Perry, Freedom and the Court (8th ed., 2003); Jacob W. Landynski, “Justice Lewis F. Powell, Jr., ‘Balance Wheel of the Court,’” in Charles M. Lamb and Stephen C. Halpern, eds., The Burger Court: Political and Judicial Profiles (1987); and David M. O'Brien, Storm Center: The Supreme Court in American Politics (7th ed., 2005). The enduring importance of Bakke is explored in John Jeffries Jr., “Bakke Revisited,” Supreme Court Review (2003): 1.

Among the many articles, see Gerald Gunther, “A Tribute to Lewis F. Powell, Jr.,” Harvard Law Review 101 (1987): 409; Sandra Day O'Connor, “A Tribute to Lewis F. Powell, Jr.,” Harvard Law Review 101 (1987): 409; Symposium: “Hon. Lewis F. Powell, Jr.,” University of Richmond Law Review (1977); and Melvin I. Urofsky, “Mr. Justice Powell and Education: The Balancing of Competing Values,” Journal of Law and Education 13 (1984): 581.

A special and affectionate portrait of Powell can be found in a book written by his first law clerk, J. Harvey Wilkinson III, Serving Justice: A Clerk's View (1974).

Noteworthy Opinions

United States v. United States District Court, 407 U.S. 297 (1972)

Healy v. James, 408 U.S. 169 (1972)

Furman v. Georgia, 408 U.S. 238 (1972) (Dissent)

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)

Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973) (Concurrence and partial dissent)

National League of Cities v. Usery, 426 U.S. 833 (1976) (Concurrence)

Gregg v. Georgia, 428 U.S. 153 (1976)

Ingraham v. Wright, 430 U.S. 651 (1977)

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) (Dissent)

Plyler v. Doe, 457 U.S. 202 (1982) (Concurrence)

Board of Education, Island Trees Free School District v. Pico, 457 U.S. 853 (1982) (Dissent)

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (Dissent)

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (Dissent)

United States v. Paradise, 480 U.S. 149 (1987) (Concurrence)

Edwards v. Aguillard, 482 U.S. 578 (1987) (Concurrence)


Document Citation
Powell, Lewis Franklin Jr., in Biographical Encyclopedia of the Supreme Court 402 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18168-979464
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