Retired High Court Justice Refuses to Close the Door on a Life in Law

They know him well in Richmond, Va., and see him with some frequency there, sitting as a judge. But in Washington, this modest Southern gentleman is seldom seen these days, even though less than a decade ago he was casting the vote that often counted the most on the Supreme Court.

Lewis Franklin Powell Jr., 88, is a retiree now, but only a part-time one, with little time to ponder how quickly fame can fade, how easily ultimate power can be laid aside.

Perhaps the nation’s most influential jurist before he left the court in 1987, Powell has made a profound shift in role: He now thinks of himself exclusively as a lower-court judge--an extra judge on the U.S. 4th Circuit Court of Appeals in Richmond.

Among the four retired Supreme Court justices, Powell is the one most actively engaged as a judge. The other three stay busy, but mostly with chores closer to what is expected of a retiree. Powell leaves no doubt that being a judge remains, for him, a labor of love.

“See, this is home for me,” he said of his special assignment as a member of the Circuit Court in which, about 60 years ago, he made his first argument as a lawyer.

As a Circuit Court judge, Powell has been overturned only once by the justices, he notes matter-of-factly. Back when he was on the Supreme Court, he was seldom outvoted.

By law, retired Supreme Court justices may sit on lower federal courts to help with ever-rising caseloads. The one court on which they can never sit is the Supreme Court itself.

Retirement, Powell said, “wouldn’t have been interesting if I couldn’t sit on the Court of Appeals.”

His active retirement illustrates a fact about the court: It is a place where service is conducive to long life, with members serving well into their seventh and often their eighth decades. The average age at retirement is 72, after an average of 15 years on the bench, according to the office of the court curator, Gail Galloway.

Powell’s retirement is typical of the court’s four retirees: Each splits his time between some real work and the ceremonial chore of showing up for festivities when another place or activity gets named in his honor: courthouses, research centers, fellowships, internships.

There also are the tasks--not always pleasant, apparently--of sifting through their Supreme Court papers to decide when and how much of them to make public, and how to avoid embarrassing sitting justices.

And there is the inevitable opportunity, or burden, of dealing with invited and uninvited biographers.

Powell has had more time than the court’s other retirees to adjust to the change: eight years. He had retired from the court for health reasons, but resumed his career when he regained his health.

He reached his 88th birthday in September. Soon afterward he was on the bench in Richmond to hear eight cases. He is due back there in February for more, if his doctors can ease a recurring back problem.

The most recent retiree, Justice Harry A. Blackmun, has not withdrawn into idleness either. His staff says the 87-year-old justice has made one concession to his new life: He has shortened his work day by one hour, and now goes home at 5:30 p.m.

Retired Justice William J. Brennan Jr., who will reach 90 next April, makes it to the office almost every day, and shows up at Georgetown University Law Center for stints as a visiting professor, sharing ideas and reminiscences with students.

Justice Byron R. White, the youngest of the retirees at age 78, has sat several times over the last two years on federal appeals courts, most recently in St. Paul, Minn., but has no further assignments at this point.

A man who once teased that he would never retire because he otherwise would find himself roaming aimlessly around shopping malls, Powell admits that part of the reason for going to the office every day is to avoid domestic chores such as cleaning the yard.

There was a loss when he left behind the power of the Supreme Court, he says. But, he adds quickly: “It was a loss I could accept--particularly since I could sit as a federal judge on any court but the Supreme Court.”

His power is now no greater on the appeals court than his colleagues there; they sit in panels of three. Like them, he gets assignments from the senior judge to write opinions, although he admits he can hand one back if he doesn’t think he can handle it, or doesn’t want to.

He keeps his spacious chambers at the Supreme Court, where evidence of his present and former careers is all about him--filings of the appeals court cases he is currently studying and bookshelves lined with the 20 red-bound volumes of opinions he wrote as a justice.

Powell had never been a judge before then-President Richard Nixon named him to the highest court in 1972. When he retired 15 years later, for the first time he became a lower court judge.

He was a latecomer, and a reluctant one, to judging. He twice said no to Supreme Court appointments before finally saying yes. “I suppose you could say that I was primarily concerned with the practice of the law,” he said.

Long prominent as a private attorney in Richmond, he rose to the presidency of the American Bar Assn. and became president of several other bar groups. He pioneered the concept that even the most high-priced lawyers should give free time to handle the legal woes of the poor.

Along the way, he was credited with helping Richmond and the state of Virginia make it through the days of desegregating public schools, and quietly rallied against the “massive resistance” efforts of the state’s segregationist officials.

On the Supreme Court, he quickly established himself as a moderate judge, often the balance wheel between strong-willed liberals and conservatives. When he retired, the gap he left was considered so large--and the opportunity available to his successor so great--that partisans in the Senate bitterly fought through two Ronald Reagan nominees before accepting a third.

One of those battles kept a deeply conservative federal judge, Robert H. Bork, from taking Powell’s place. After Powell’s retirement, the fight over a successor ended--perhaps permanently--the ease with which nominees can expect to go through Senate review.

Looking back, Powell says that he had not been inclined to step down when he did, but a bout with cancer left no choice but retirement. But “when I was well enough to go back to work,” he longed for the chance to serve on a court he cherishes.

Hinting at the distance that can grow in the small, close-knit community that is the Supreme Court, he said: “I don’t see the sitting justices very frequently; I may see one or more of them as I walk up and down the halls.”

Then, catching himself, he says in partial apology, partial explanation: “But I don’t sit on this court!” Asked if he would like to have any influence on how the justices decide any current case, he says without hesitation: “None whatsoever.”