POWELL, LEWIS F., JR. (1907–1998) (Update)

From his appointment in 1971 until his resignation in 1987, Lewis F. Powell, Jr. was widely known as the "swing 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 constitute a suspect classification that would trigger close judicial scrutiny. Especially because the plaintiffs' argument called into question the educational financing system of "virtually every State," Powell found judicial restraint to be appropriate. "It would be difficult to imagine a case having a greater impact on our federal system than the one now before us," he wrote. "The ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them." Powell took a similarly deferential stand in cases challenging the infliction of various kinds of punishment in the public schools and the removal of books from a school library.

While Powell was a fairly traditional conservative on questions of federal jurisdiction and of federalism, his accommodationist impulses and penchant for balancing often asserted themselves in cases under the first amendment, the eighth amendment, and the fourteenth amendment. It was in these areas that he acquired his reputation as a swing Justice.

Powell's most famous opinion, in regents of university of california v. bakke (1978), epitomizes both Powell's judicial style and his role on an ideologically fractured Supreme Court. The case arose when Alan Bakke, a white male who was denied admission to the medical school of the University of California at Davis, challenged the school's practice of setting aside sixteen of one hundred places in its entering class for members of disadvantaged minorities. Four Justices of the Court would have upheld affirmative action programs under considerably looser constitutional standards than applied to invidious discrimination. Four other Justices found all acts of racial preference, even those that favor discrete and insular minorities, to be absolutely prohibited by an applicable federal statute. That left Justice Powell, alone in the middle, to formulate the constitutional principles that would define the law of the case.

Upholding the ideal that race is irrelevant to moral worth, Powell argued that even discrimination in favor of minority persons must be subject to strict scrutiny by the courts. But, carefully parsing the state's reasons for pursuing affirmative action, he also identified an interest in student diversity that was sufficiently "compelling" to justify attaching affirmative weight to prospective students' minority backgrounds as one of many factors relevant to admissions decisions. The end result was that racial quotas were forbidden, but individualized "pluses" permitted. Steps could thus be taken to make amends for the legacy of past invidious racialism, but a narrow tailoring of program to rationale was required.

Although no other Justice joined Powell's opinion in Bakke, Powell generally succeeded in establishing both the framework and the tone for the Supreme Court's affirmative action jurisprudence over the next ten years. The legal framework, subject to possible exception only in cases of congressional action, required compelling justifications, even for noninvidious or compensatory racial preferences. The tone reflected Powell's sense that the underlying issues were too hard, both morally and legally, to be settled other than on a case-by-case basis that would permit some accommodation, however crude, of the competing values at stake. In a series of cases involving employment and promotions, Powell's vote made the majority for the proposition that racial preferences would be allowed under the Constitution when reasonably necessary to correct for past discrimination by the institution implementing an affirmative action program or subject to a remedial judicial order. But he also insisted that racial classifications should be disfavored and, writing for a plurality of the Court in wygant v. jackson board of education (1986), held that dispreferred whites may not be required to carry too heavy a burden in order to compensate for wrongs of which they personally are likely innocent. The resulting balance was not always neat, but it reflected Powell's sense that some sort of accommodation was needed.

Careful balancing and accommodation of competing interests also marked Powell's approach to the First Amendment. Perhaps his most important opinion on this subject came in gertz v. robert welch, inc. (1974), which raised an issue about the scope of constitutional protection enjoyed by the press in suits for libel. The common law generally had presumed liability for all defamatory speech, with the burden resting on the defendant to prove truth as a defense. In the landmark case of new york times v. sullivan (1964), however, the Supreme Court had recognized a constitutional privilege in cases involving speech about public officials in the performance of their official duties. Because of the public interest in promoting free and robust debate about governmental affairs, defamations of public officials were held to be constitutionally protected unless published "with actual malice," which the Court defined to mean with knowledge of their falsity or with reckless disregard for whether they were true or false. But the Court, following New York Times, had not reached a consensus on the scope of constitutional protection that should be accorded to other defamatory speech.

Carefully balancing the competing interests in freedom of speech, freedom of the press, and the protection of individual reputation, Powell's Gertz opinion sought a middle ground. In order to avoid unwarranted "chilling" of the press as a result of threats of liability, Powell held that the states may not impose liability for libel in the absence of some showing of "fault." But neither, he concluded, did the First Amendment require that the state's interest in protecting its citizens' good names and reputations be sacrificed entirely. Where "private figures" are defamed, Gertz permits liability based on a showing that the press was negligent in publishing a false report. In actions brought by "public figures," whose stature or notoriety allows them greater opportunity to counter false allegations in the marketplace of ideas, the balance shifts, and liability requires a demonstration of actual malice.

In addition to its balancing methodology, Powell's First Amendment jurisprudence was notable for its sensitivity to the role of a free press in making democracy work. In gannett co. , inc. v. depasquale (1979) Powell argued in a concurring opinion that the First Amendment required at least a presumptive right of the press to attend and report on criminal trials. His views about rights of access to judicial proceedings were substantially adopted by the Court a year later in richmond newspapers v. virginia (1980). But Powell would have gone further. In provocative dissenting opinions in Saxbe v. Washington Post Co. (1974) and Houchins v. KQED (1978), he argued that the press, as a representative of the public, should have limited right of access to report on conditions inside prisons and presumably on the management of other governmental operations. From one perspective, Powell's views in these cases seem in tension with his generally respectful and deferential stance toward local government and political authority. From another, his position reflects a powerful inner logic. Local government deserves deference only insofar as it represents the informed judgments of its citizens. When government conducts its affairs in unnecessary secrecy, Powell believed, the moral foundations of democracy erode.

The need to strike a balance between deference to democratically accountable decision makers and the protection of competing constitutional values was also a main theme in Powell's opinions involving procedural due process. In this area, too, he emerged as one of the Court's intellectual leaders. Writing in mathews v. eldridge. (1976), Powell developed a three-part balancing test that has since become ubiquitous in the Supreme Court's procedural due process cases. To determine whether the government has provided adequate procedural safeguards against the erroneous deprivation of a citizen's liberty or property rights, Powell held, the Court must weigh and balance the magnitude of the individual interests at stake; the government's interests, including those in cheap and efficient administration; and the reduction in the risk of error that more-extensive procedures might yield.

Powell was also an important figure in cases involving substantive due process issues. He joined the initial 7–2 majority recognizing constitutional abortion rights in roe v. wade (1973) and remained committed to Roe 's analytical framework throughout his tenure on the Court. As the Court later grew more polarized on abortion issues, Powell's centrist line-drawing often proved decisive in making 5–4 majorities. Powell also cast the swing vote in bowers v. hardwick. (1986), holding that the Constitution's protection of the right of privacy and the right of procreation does not extend to homosexual sodomy. In a characteristically accommodationist gesture, however, he suggested that a severe criminal penalty might offend the constitutional prohibition against cruel and unusual punishment.

Early in his career on the Supreme Court, Justice Powell won high praisse from influential commentators for his skillful and judicious use of a balancing approach to constitutional questions. Although never defined with great precision, balancing—as practiced in Matthew v. Eldridge, for example—calls for the identification of all relevant and competing interests, and the striking of a balance for the case at hand; slight changes in the catalogue of affected interests, or the degree of their implication, could alter the result in the next case. Partly because of the looseness with which definitions of balancing are formulated, it is difficult to say how sharply balancing differs from other approaches to constitutional interpretation. Much depends on how the specification of relevant interests fit into, or competes with, judicial reliance on such factors as the constitutional text, constitutional history, precedent, constitutional structure, and traditional or consensus values.

Nevertheless, the view seems to be gaining currency that balancing is the currently predominant approach to constitutional interpretation and that Justice Powell was a leading figure in popularizing this methodology. Some commentators have offered the further argument that balancing is a deficient or even a bankrupt method of constitutional analysis. And at least one, Professor Paul Kahn, has argued that its deficiencies are damningly exhibited in Justice Powell's opinions. Powell's balancing, according to this criticism, was ad hoc, unpredictable, and subjective. Moreover, his approach to judging misconceived the judicial function, which is to identify and hierarchically array constitutional principles of sufficient clarity and generality to offer clear guidance both to lower courts and to political decision makers.

These criticisms are at best overstated. Powell's case-by-case balancing approach located him in a time-honored tradition of practical thinking in which principles—whether legal or moral—represent the distilled wisdom of carefully individualized judgments. Adherents of this approach, which has found its way into the traditions of common law adjudication and of constitutional interpretation as well, argue forcefully that it is a practical and intellectual mistake to rest on rules that are too broad for their correctness to be rationally vindicated in advance. And Powell, when he thought rational vindication possible, did not hesitate to paint with a broad brush. He did so, for example, in establishing First Amendment lines and categories in Gertz v. Robert Welch, Inc.

It is a seperate charge that Powell's mode of balancing—in the affirmative action cases, for example—represented judicial policymaking that was insufficiently rooted in traditional sources of legal authority to qualify as anything more than judicial second-guessing of a political judgment. Powell, his critics argue, located himself too much "inside" the political community and wrongly tried to bring the community's values to bear on constitutional questions; instead, a Justice should locate himself outside the community in the lofty and frequently astringent principles of the Constitution. The fallacy in this criticism is that there is ultimately no helpful interpretive position "outside" the constitutional community. A Supreme Court Justice, like anyone, must read the Constitution from inside the society to which its lofty generalities must be applied. And it would be folly to think that a constitutional interpreter should try to ignore the society's needs and values. For Powell, traditional sources of legal authority retained their force. But Powell looked at them, and appropriately so, from a point of view that sought to reach sound, practical solutions to constitutional problems.

It is a somewhat more telling argument against the characteristic jurisprudence of Justice Powell that, in the search for a pragmatic balance—in the effort to keep competitive values in a position approaching equipoise or to achieve what he thought was a sensible result in a particular case—he sometimes drew lines that were too fine or too ad hoc to withstand critical scrutiny. Certainly Powell's humanitarian instincts sometimes caused him to distinguish relevant "conservative" precedents, including those that he had authored, by force of little more than ipse dixit. His concurring opinion in plyler v. doe (1982), distinguishing san antonio independent school district v. rodriguez and holding that Texas could not withhold free public education from illegal-alien children, falls into this category. Some have argued that the Bakke line between forbidden racial quotas and permissible individual preferences is intellectually untenable.

Finally, Powell's sense of what was prudent or practically necessary sometimes overrode both the force of contending arguments and considerations of fairness. In mcclesky v. kemp (1987), for example, the petitioner introduced statistical evidence establishing that blacks are more likely to be sentenced to death than are whites and that the killers of whites are more than four times more likely to be executed than are killers of blacks. This evidence, McClesky argued, required reversal of his death sentence under both the constitutional prohibition against cruel and unusual punishment and the equal protection clause. Justice Powell disagreed. In an opinion of unusual candor, he argued that the Court must reject the plaintiff's argument partly because of the far-reaching implications of its underlying premise. "McClesky's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system, " Powell wrote. If statistical demonstrations of systemic disparities could establish individual unfairness, the Court "could soon be faced with similar claims [against] other types of penalty" from members of other disadvantaged groups. Powell plainly regarded this prospect as practically intolerable.

Although happily atypical in some respects, McClesky was, in fact, a characteristic Powell decision. Exemplifying the role of Justice as statesman, Powell repeatedly experienced conflicts of competing values about how a Supreme Court Justice, with his mission conceived to include a component of prudent statesmanship, ought to act. In cases in which competing values conflict, it is always easy to criticize any particular decision as striking the wrong balance. The harder and more interesting question is whether Powell, in embracing the obligations of prudent statesmanship, conceived his judicial role correctly. Although retirement encomiums are perhaps not the strongest evidence, Powell, upon stepping down from the Supreme Court, was widely hailed as a model Supreme Court Justice of the modern age.

Richard Fallon
(1992)

Bibliography

Aleinikoff, T. Alexander 1987 Constitutional Law in the Age of Balancing. Yale Law Journal 96:943–1005.

Freeman, George Clemon 1988 Justice Powell's Constitutional Opinions. Washington and Lee Law Review 45:411–465.

Gunther, Gerald 1972 In Search of Judicial Quality on a Changing Court: The Case of Justice Powell. Stanford Law Review 24:1001–1035.

Kahn, Paul W. 1987 The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell. Yale Law Journal 97:1–60.

Maltz, Earl M. 1979 Portrait of a Man in the Middle—Mr. Justice Powell, Equal Protection, and the Pure Classification Problem. Ohio State Law Journal 40:941–964.

Synposium 1982 In Honor of Justice Lewis F. Powell, Jr. Virginia Law Review 68:161–458.

Tribute 1987 Tribute to Justice Lewis F. Powell, Jr. Harvard Law Review 101:395–420.

Urofsky, Melvin I. 1984 Mr. Justice Powell and Education: The Balancing of Competing Values. Journal of Law and Education 13:581–627.