Powell, Lewis F., Jr. Summary

  • Last updated on November 11, 2022

During his fifteen years on the Supreme Court, Powell dominated an ideologically balanced court with his pragmatic, centrist views and his kind and courtly personal manner.

Although Powell’s father was eventually successful in business, Powell’s parents were not established socially or economically at the time of his birth. Powell received a bachelor’s and a law degree from Washington and Lee University and a master’s degree in law from Harvard University. Powell had a long and successful career in private law practice in Richmond, Virginia, worked in the U.S. Army breaking the German codes in World War II, and presided over the American Bar Association and other national professional groups. Powell also led the Richmond School Board in the aftermath of Brown v. Board of Education (1954) and served on the state board of education through much of the next decade.Nixon, Richard M.;nominations to the Court

Associate Justice

In 1972, at the age of sixty-four, Powell took his seat as an associate justice. If Powell, a Southern gentleman, sustained his aristocratic loyalties without embarrassment, he also appreciated the striking diversity of American traditions and backgrounds. Powell was also noteworthy for a background increasingly rare among Supreme Court justices: a career without prior judicial experience.

Lewis F. Powell, Jr.

(Library of Congress)

In the next fifteen years until his resignation in 1987, Powell’s voice and vote were so critical to constitutional jurisprudence that many might designate this period as the Powell Court rather than by the traditional reference to the presiding chief justice. As the Court and the country swung from the liberalism of Earl Warren’s court to the conservatism of the Court under Warren Burger and William H. Rehnquist, Powell often provided the decisive fifth vote. Yet Powell’s prominence is as much a matter of his intellectual as his numerical position in close cases. Powell was a “balancer” in both senses. He broke down complex cases into the facts, arguments, and interests arrayed on either side, seeking an equilibrium among them.

Powell’s most famous opinion was undoubtedly Regents of the University of California v. Bakke[case]Regents of the University of California v. Bakke[Regents of the University of California v. Bakke] (1978). Powell’s opinion held that race may be considered in academic admissions but may not preclude full and individual consideration of all candidates. In San Antonio Independent School District v. Rodriguez[case]San Antonio Independent School District v. Rodriguez[San Antonio Independent School District v. Rodriguez] (1973), Powell’s opinion for the Court held that disparate funding of public schools was not subject to judicial strict scrutiny because economic class was not a suspect classification nor education a fundamental right. In McCleskey v. Kemp[case]McCleskey v. Kemp[MacCleskey v. Kemp] (1987), Powell’s opinion for the Court held that a statistically significant relationship between the race of the perpetrator and the victim and a capital sentence did not prove that this petitioner’s punishment resulted from racial discrimination. However, Powell concurred in striking down a Texas statute that denied state aid to local school districts for illegal alien children in Plyler v. Doe[case]Plyler v. Doe[Plyler v. Doe] (1982).

Moreover, Powell consistently favored proportionality in other criminal process and punishment cases with a strong equality dimension, including Batson v. Kentucky[case]Batson v. Kentucky[Batson v. Kentucky] (1986), Rummel v. Estelle[case]Rummel v. Estelle[Rummel v. Estelle] (1980), Solem v. Helm[case]Solem v. Helm[Solem v. Helm] (1983), and Bowers v. Hardwick[case]Bowers v. Hardwick[Bowers v. Hardwick] (1986).Defendants’ rights In United States v. United States District Court[case]United States District Court, United States v.[United States District Court, United States v.] (1972), Justice Powell’s majority opinion struck down warrantless wiretaps of suspected domestic subversives. In California v. Ciraolo[case]California v. Ciraolo[California v. Ciraolo] (1986), Powell’s dissent expressed the view that a warrantless aerial observation of a fenced-in backyard violated the Fourth Amendment. In Eddings v. Oklahoma[case]Eddings v. Oklahoma[Eddings v. Oklahoma] (1978), Powell’s majority opinion forbade the exclusion of individualized, mitigating circumstances in capital sentencing. However, in Booth v. Maryland[case]Booth v. Maryland[Booth v. Maryland](1987), Powell’s opinion for the Court held that victim impact statements at sentencing violated the Eighth Amendment.

Powell’s majority opinion in Gertz v. Robert Welch[case]Gertz v. Robert Welch[Gertz v. Robert Welch] (1974) established a middle ground for libel against a private person, allowing states to choose their own standards, except that liability could not be imposed without fault nor punitive damages granted without knowledge of falsity or reckless disregard of truth. In Gannett Co. v. DePasquale[case]Gannett Co. v. DePasquale[Gannett Co. v. DePasquale] (1979) Justice Powell concurred in upholding a judicial order, agreed to by the prosecution and defense, barring the press and public from a pretrial suppression hearing.

Powell’s majority opinion in Committee for Public Education and Religious Liberty v. Nyquist[case]Committee for Public Education and Religious Liberty v. Nyquist[Committee for Public Education and Religious Liberty v. Nyquist] (1973) found programs of public assistance to private schools, students, and parents to be unconstitutional. In Wallace v. Jaffree[case]Wallace v. Jaffree[Wallace v. Jaffree] (1985), Powell concurred in striking down a “moment of silence” authorization, reserving judgment on a similar practice if undertaken for a secular purpose.

Powell’s Legacy

Following Powell’s retirement, President Ronald Reagan nominated the controversial Robert H. Bork. Although Powell was confirmed with only one negative vote, Bork’s nomination was defeated at least in part because of the contrast between him and Powell both in temperament and in ideological sharpness. Though Anthony M. Kennedy ultimately took Powell’s seat, Powell’s centrist role was assumed by Sandra Day O’Connor. In the years since, she has frequently controlled a court balanced between liberal and conservative wings. In that role, O’Connor has continued Powell’s pragmatism and collegiality.

Further Reading
  • Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
  • Freeman, George Clemon, Jr. “Justice Powell’s Constitutional Opinions.” Washington and Lee Law Review 45 (1988): 411-465.
  • Jeffries, John Calvin. Justice Lewis F. Powell, Jr. New York: Fordham University Press, 2001.
  • Kahn, Paul W. “The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell.” Yale Law Journal 97 (1987): 1-60.
  • Powell, Lewis F., Jr. “Reflections.” Virginia Magazine of History and Biography 96 (1988): 315-332.
  • “A Tribute to Justice Lewis F. Powell, Jr.” Harvard Law Review 101 (1987): 395-420.
  • Urofsky, Melvin I. “Mr. Justice Powell and Education: The Balancing of Competing Values.” Journal of Law and Education 13 (1984): 581-627.
  • Yarbrough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2000.

Affirmative action

Batson v. Kentucky

Collegiality

Gertz v. Robert Welch

Judicial self-restraint

McCleskey v. Kemp

Race and discrimination

Regents of the University of California v. Bakke

San Antonio Independent School District v. Rodriguez

School integration and busing

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