Surprised Nixon : Centrist Justice Wielded Power on Split Court

On a chilly January day two years ago, Supreme Court Justice Lewis F. Powell Jr. announced that he would be entering the Mayo Clinic to undergo cancer surgery. For the next 2 1/2 months, on one controversial case after another until Powell returned to work, the nation’s highest court was deadlocked.

Now, Powell’s decision to retire for reasons of age and health means that, for as long as his seat remains unfilled, the deadlock is likely to return.

And the stalemate illustrates a paradox about Powell’s 15 1/2-year career on the court--a paradox that points to a lesson for President Reagan and congressional Democrats as they square off over selection of his successor.

Although he was nominated by President Richard M. Nixon as part of an effort to shift the balance away from the liberal decisions of the Earl Warren court, Powell proved to be a moderate who supplied the pivotal vote against doctrinaire conservative positions on a series of explosive issues.

On abortion, for example, Powell became a key fifth vote in repeatedly striking down state restrictions. On affirmative action, he led the way as the court haltingly moved toward acceptance of racial preferences to compensate for past discrimination. On church-state relations, he provided the swing votes that blocked government aid to parochial schools and attempts in some states to mandate silent prayers for students.

Reagan is widely expected to seek a nominee who will help reverse many of those positions.

Yet Powell’s record offers graphic evidence of the difficulty presidents--and members of Congress--have in influencing future Supreme Court decisions through their roles in selecting justices.

No Guarantees on Justices

“You get no written money-back guarantees with a Supreme Court appointment, and one of the good illustrations of that is Justice Powell, who was appointed by a President who went out of his way to change the court,” said Supreme Court scholar Jesse H. Choper, dean of the University of California Law School. Choper added that “this Administration has done pretty well” so far in picking justices in its own image.

“Even a ‘strong’ President determined to leave his mark on the court . . . is apt to be only partially successful,” now-Chief Justice William H. Rehnquist said in a 1984 speech. “Institutional pressures” within the court “weaken and diffuse the outside loyalties of any new appointee,” he said.

Powell surprised many conservatives and Nixon himself. His record “has not been what Nixon predicted when they put him on,” said University of Virginia law professor A.E. Dick Howard, a long-time acquaintance of Powell.

‘He Would Snap at You’

“If you pushed Powell too hard, he would snap back at you,” said Burt Neuborne, who argued frequently before Powell as legal director of the American Civil Liberties Union. “He mistrusted attempts to solve social problems that didn’t recognize that both sides had something very important to protect.”

For much of his term, Powell’s crucial fifth vote on a sharply divided bench gave him tremendous power and made him one of the most influential justices of his era.

“If one could draw a picture of the way the court operated, you would see eight justices looking at Justice Powell and asking: ‘Is it constitutional or isn’t it,’ ” Choper said.

Despite his tremendous authority on the court, Powell’s lack of sharply defined ideology resulted in there being few legal doctrines bearing his name. “If you’re a committed centrist on a tightly balanced court, you’re going to be a very powerful man. But precisely because you are a centrist, your votes are going to cancel out a lot,” Neuborne said. “(Powell) was probably the most powerful treader of water in the court’s history.”

‘Rudderless’ Court

Powell’s tendency to make fine distinctions among cases was a major cause of the high court’s reputation for lacking a clear sense of direction, for being “rudderless.” He “was largely responsible for the way the court (in recent years) sort of went on a broken path,” one scholar said.

But Powell rejected criticism of the court’s sometimes wandering ways. “I have often wondered whether those who decry the ‘rudderless court’ would like to be judged by a different kind of court . . . that decided cases according to some consistently applied philosophy or ‘theme,’ rather than by the facts of (the) case and the applicable law,” he wrote in a 1980 article.

Lawyers arguing before the court, knowing Powell’s key role, often said that they would pitch their arguments and write their briefs to appeal to him. “You would be going for two or three people in the middle, and Powell was the key,” said Washington lawyer Benjamin W. Heineman Jr.

Similarly, “If you were a justice and you were writing a case on which the votes were uncertain, it would often be Powell you were writing for,” said Heineman, who was a clerk for the late Justice Potter Stewart.

‘Would This Fly?’

“Powell was the barometer in strategy sessions,” Neuborne said. “The conversation would be: ‘Would this fly with Powell? Do you have a chance with Powell on that?’ ”

Legal scholars Friday said that Powell would be most remembered for his 1978 decision that upheld, in part, the University of California’s affirmative action admissions plan. The plan had been challenged by a white applicant, Allan Bakke, who was denied admission to the UC Davis medical school.

The case was the first in which the justices ruled on affirmative action. Four favored it; four opposed it. Powell, writing the deciding opinion, said that such plans could be used, but not if they employed rigid quotas. “Here they were 4-4, and he cut the baby in half on one of the most controversial issues of our time,” Choper said.

Powell’s pivotal position on that issue continued into the current term, in which the court once again, this time in more sweeping terms, upheld affirmative action programs.

The Bakke case demonstrated Powell’s key role on the court, but also the particular attention he paid to issues involving education. As a prominent Virginia lawyer, Powell’s first encounter with public life was his service as president of the Richmond, Va., school board, and many of his leading decisions involved schools.

First Major Opinion

His first major opinion, for example, was written in a 1973 case from Texas in which the court, voting 5 to 4, rejected a claim by Latino families that the use of local property taxes to finance schools unconstitutionally discriminated against the poor. Unlike programs that discriminate on the basis of such grounds as race, Powell wrote, discrimination against the poor is not automatically suspect constitutionally.

“The need is apparent for reform” in property taxes, Powell wrote, “but the ultimate solutions must come from the lawmakers,” not from judges.

Earlier this term, Powell provided another key fifth vote, this one for the conservatives, in a decision upholding Georgia’s death penalty law against claims that it unconstitutionally discriminated against blacks. Although Powell sometimes voted to reverse death sentences, he was generally a vote for capital punishment and several years ago strongly criticized lawyers for Death Row inmates, who, he said, unfairly made cases drag on.

In addition to his years on the Richmond school board, Powell served on the commission in the late 1960s that rewrote Virginia’s constitution. He was also a president of the American Bar Assn.

“He’s a man with a fair amount of reserve. Hail-fellow-well-met he’s not,” said University of Virginia Prof. Howard. But, “he’s gentle and thoughtful, totally civilized, a very decent man to be around.”

Former court clerks noted Powell’s politeness and courtly manners and said that, among the often-contentious justices, he stood out as having both the respect and affection of his colleagues.

Soft-Spoken Questions

Powell often would excuse himself before interrupting a lawyer with a question when the court was hearing oral arguments on cases. At times, questions from the soft-spoken justice would be difficult to hear. Lawyers, however, paid close attention, knowing--as former U.S. Solicitor General Rex E. Lee often would tell his Justice Department staff--that Powell’s infrequently asked questions frequently indicated his inclinations in the case.

Powell was the only one of the justices who arrived at the high court directly from law practice, rather than from a career in politics or a stint on a lower court, and was “the most technically competent” of the justices “just in sheer traditional lawyering ability,” one lawyer with a large practice before the court said.

He frequently wrote opinions for the court in technically difficult areas of the law, such as antitrust policy.

Yet, several lawyers said that Powell will be remembered less for any particular decision than for his role in anchoring the center of the court.

“When I started,” said one lawyer who practices frequently before the court, “if you asked people to define the center of the court, they said Stewart, then it became Powell, now it’s (Reagan appointee Sandra Day) O’Connor.”