POWELL, LEWIS F., JR. (1907–)

Lewis Franklin Powell, Jr., has always eluded conventional portraiture. In broad brush, Powell appears the archetypal conservative: a successful corporate lawyer, a director of eleven major companies, a pillar of Richmond, Virginia's civic and social life. The roll call of legal honors—president of the American Bar Association, the American College of Trial Lawyers, and the American Bar Foundation—does little to dispel the impression.

The portrait, however, needs serious refinement. During Virginia's "massive resistance," when the Byrd organization chose to close public schools rather than accept racial integration, Powell, as chairman of the Richmond Public School Board, fought successfully to keep Richmond's open. As vice-president of the National Legal Aid and Defender Society, he helped persuade the organized bar to support publicly financed legal services for the poor. Jean Camper Cahn, a black leader with whom he worked in that endeavor, found Powell "so curiously shy, so deeply sensitive to the hurt or embarrassment of another, so self-effacing that it is difficult to reconcile the public and private man—the honors and the acclaim with the gentle, courteous, sensitive spirit that one senses in every conversation, no matter how casual.…"

The portrait of the private practitioner parallels that of the Supreme Court Justice. The broad picture is again one of orthodox adherence to the canons of restraint. Powell labored diligently to limit the powers of the federal courts. He sought to narrow the standing of litigants invoking federal jurisdiction to instances of actual injury in warth v. seldin (1975). He dissented when the Court in Cannon v. University of Chicago (1979) inferred from federal statutes a private cause of action. He greatly restricted the power of federal judges to review claims of unlawful search and seizure raised by state defendants in stone v. powell (1976). And he urged the sharp curtailment of federal equitable remedies such as student busing for racial balance, in cases like keyes v. denver school district #1 (1973).

While working to limit federal judicial power, Powell championed the power of others to operate free of constitutional strictures. Thus prosecutors should enjoy discretion in initiating prosecution, police and grand juries in pursuing evidence, trial judges in questioning jurors, welfare workers in terminating assistance, and military officers in conducting training. The "hands-off" view applied especially to public education. Powell, a former member of the Virginia Board of Education, wrote the Court opinion preserving the rights of states to devise their own systems of public school finance in san antonio school district v. rodriguez (1973). And the former chairman of the Richmond School Board spoke for the broad discretion of school authorities to administer student suspensions and corporal punishment, dissenting in goss v. lopez (1975) and writing for the Court in ingraham v. wright (1977).

Even so, a corner of the jurist's nature has been reserved for personal circumstances of particular poignancy. An early opinion afforded a black construction worker in Mississippi, father of nine, the opportunity to confront his accusers and establish his innocence in Chambers v. Mississippi (1973). Another Powell opinion, in moore v. east cleveland (1977), voided a municipal housing ordinance that prevented an elderly woman from living with her adult sons and grandchildren. Another, solem v. helm (1983), held unconstitutional a life sentence without parole imposed by state courts on the perpetrator of seven nonviolent felonies. Even in the sacrosanct area of education, the Justice concurred in plyler v. doe (1982) rather than leave children of illegal aliens "on the streets uneducated."

The cases of compassion are remarkable in one respect. Vindication of the individual claims meant overriding the most cherished of Powell's conservative tenets: the protection of state criminal judgments from meddlesome review on petition for federal writs of habeas corpus, and the recognition of only those rights tied closely to the constitutional text. Powell, plainly nervous about damaging these principles, narrowed the rulings almost to their actual facts. The cases thus testify both to a strength and a weakness in the jurist, the strength being that of an open mind and heart, the weakness being that of cautious case-by-case adjudication that leaves law bereft of general guidance and sure content.

The dichotomy between the cases of compassion and the towering doctrinal efforts of the school finance case (Rodriguez) and the search and seizure case (Stone) illustrates the different dimensions of the man himself. Powell, for example, privately deplored the arrogance of the national communications media and the maleficence of the criminal element. But he was, by nature, reserved, considerate, as eager to listen as to talk. Thus, even on subjects of strong feeling, the tempered judgment often triumphed. This quality marked his opinions dealing with the press. In a concurrence more libertarian than the Court opinion he joined in branzburg v. hayes (1972), Powell urged that "a proper balance" be struck on a "caseby-case basis" between the claims of newsmen to protect the confidentiality of sources and the need of grand juries for information relevant to criminal conduct. In gertz v. robert welsh inc. (1974), perhaps his most important opinion on the first amendment, Powell balanced a plaintiff's interest in his good reputation against press freedoms, permitting private citizens to recover in libel on a standard less than "knowing or reckless falsehood" but greater than liability without fault. Balancing of individual and societal claims characterized Powell's opinions involving the rights of radical campus organizations, the unconventional use of national symbols, and even many criminal cases, where fact-specific rulings on the admissibility of suspect lineups, for example, began to replace the per se exclusionary rules of the warren court.

Balancing does not permit confident forecasting of appellate outcomes. Case-by-case weighing of facts and circumstances can constitute a dangerous delegation of the Supreme Court's own authority on constitutional matters to trial judges, police and prosecutors, and potential litigants, all of whom capitalize on the uncertainty of law to work their own wills. But balancing suited Powell's preference for a devolution of authority and, in cases like Gertz, achieved a thoughtful accommodation of competing interests.

In his most famous opinion, university of california regents v. bakke (1978), Powell, the balancer, struck a middle course on the flammable question of benign preferences based on race. The immediate question in Bakke was whether the medical school of the University of California at Davis could set aside sixteen of one hundred places in its entering class for preferred minorities. Eight Justices took polar positions. Four argued that Title VI of the civil rights act of 1964 prohibited any preference based on race. Four others contended that both the act and the constitution permitted the Davis program. Powell, the ninth and deciding Justice, alone sought to accommodate both the American belief in the primacy of the individual and the need to heal a history of oppression based on race.

It has become common to note that the Supreme Court under warren e. burger did not, as some feared, dismantle the activist legacy of the Warren Court. Many of the influential Justices, Powell, potter stewart, and byron r. white among them, were more pragmatic than ideological. Thus the Court trimmed here, expanded there, and approached complex questions cautiously. Powell's opinions exhibit, as much as those of any Justice, this Court's composite frame of mind. Like him, the Court he served has eluded conventional description.

J. Harvie Wilkinson III
(1986)