Lewis F. Powell, Former Supreme Court Justice, Dies at 90

Retired Supreme Court Justice Lewis F. Powell Jr., the soft-spoken, courtly Virginian whose decisions set the nation on a middle-road course on the issue of race and affirmative action, died Tuesday at age 90.

Increasingly frail and weak in recent years, Powell had retreated to his Richmond, Va., home, where he died in his sleep, the court announced.

Powell--the crucial swing vote on the nine-member court--was often referred to as the most powerful lawyer in America. He had never served as a lower court judge.

On matters ranging from civil rights and affirmative action to the death penalty and abortion, his decision often became the court’s decision. He was a moderate-liberal on civil rights and civil liberties and a conservative on crime. As a result, so was the court during his 15 years on the bench.

President Clinton praised him as “one of our most conscientious and thoughtful justices [who] approached each case without an ideological agenda. His opinions were a model of balance and judiciousness.”

His retirement in 1987 set up a contentious battle over the nomination of Robert H. Bork, a conservative who was rejected in the Senate as too ideological.

A white Southerner who grew up in the era of rigid segregation, Powell nonetheless played the key role in preserving affirmative action as an open door of opportunity for a generation of minority students.

In the celebrated Bakke case of 1978, Powell stood alone but forged a compromise position that has remained as the law ever since.

A white 38-year old civil engineer from Los Altos, Calif., Allan Bakke had charged the medical school at UC Davis with discrimination because he had been rejected for admission despite high grades and test scores. The school reserved 16 of its 100 slots for minority students.

Joining four conservative colleagues, Powell rejected the use of such quotas or fixed formulas that reserved positions for black, Latino or Asian students. However, he wrote separately to say that race can be taken into account as “a plus factor” when evaluating individual minority applicants.

Despite two decades of debate and dispute since, Powell’s formula has remained the federal constitutional standard governing affirmative action in colleges and universities. California voters amended the state’s Constitution in 1996 to prohibit preferential treatment by race in the state’s colleges.

Uncommonly Gentle and Courteous Man

Among his Supreme Court colleagues, Powell is remembered best not for particular decisions but as an uncommonly sweet, gentle and courteous man.

“I have known no one in my lifetime who is kinder or more courteous than he,” said Justice Sandra Day O’Connor, who formed an especially close bond with Powell when she joined the formerly all-male court in 1981. “He graced the lives of all who had the privilege of his company and counsel.”

“All of us admire your extraordinary capacity to forcefully participate in our private and public debates without ever allowing advocacy to degenerate into contentiousness,” the justices said in a letter to Powell upon his retirement.

His biographer, University of Virginia law professor John C. Jeffries, said Powell “came from an older and grander tradition where the lawyer was a public citizen. He had a sense [that] he owed a lot to his country and to his community and he spent years serving in a variety of thankless tasks. He was a member of the school board, served on the state education board and raised money for legal aid for the poor.”

He did not aspire to serve on the nation’s highest court, however.

The Nixon White House, eager to appoint a Southerner to the court, had twice approached Powell but he rejected those overtures. Finally, in 1971, he reluctantly accepted Nixon’s nomination. He believed he was too old at age 64 to start a judicial career and relented only after the president called personally to say it was his duty to serve.

“Ten years of Lewis Powell on the court was worth 20 years of anyone else,” Nixon said at the time.

The nomination drew wide praise and Powell won Senate confirmation on an 89-1 vote. He officially joined the court in January 1972, at the same time as Associate Justice William H. Rehnquist, later to become chief justice.

Along with two other Nixon appointees--Chief Justice Warren E. Burger and Justice Harry Blackmun--the new quartet was supposed to end the liberal activism of the court under the late Chief Justice Earl Warren and usher in a law-and-order era.

But it did not work out just that way. In 1972, the court struck down the death penalty as unconstitutional, with Powell and the other Nixon appointees in dissent.

The following year, the court struck down all of the nation’s abortion laws in the case of Roe vs. Wade. Powell joined Blackmun’s opinion that spoke for a 7-2 majority.

Powell never wavered from his view that a woman had the right to end an unwanted pregnancy. However, he later joined his more conservative colleagues to rule that the government need not fund abortions for poor women. This compromise approach also has remained the law.

Crucial Votes for Death Penalty

Though no fan of the death penalty, Powell provided a crucial vote in 1976 to restore capital punishment as an option for the states. He also wrote the court opinion for a 5-4 majority in 1987 that rejected a challenge to the death penalty as racially biased.

Dismissing data showing that murderers of whites in Georgia were more likely to receive death sentences than murderers of blacks, Powell focused narrowly on the cop killer whose case came before the court. Having shot a police officer at close range during a robbery, Warren McCleskey deserved the punishment he received, Powell concluded, and the statistics did not prove otherwise.

After retiring from the court, the justice said he regretted one decision.

In June 1986, after weeks of indecision, Powell cast the crucial fifth vote to uphold Georgia’s anti-sodomy law in the case of Bowers vs. Hardwick. At the time, he said, he might have voted differently had the gay man who brought the case actually been prosecuted. But years later, Powell said in an interview that he “probably made a mistake” and should have voted to strike down such laws as flatly unconstitutional.

“The truth is he was never of one mind on Bowers. He remained in doubt,” said Jeffries, who was clerk to Powell. “On the one hand, he thought the sodomy laws were barbaric. On the other hand, he didn’t think the Supreme Court was the right place to lead a revolution on gay rights.”

Powell’s resignation at the end of the court term in June 1987 set off one of the momentous court struggles of the 20th century.

President Reagan, seeking to cement a conservative majority, nominated U.S. appeals court Judge Bork to succeed him. But after a summerlong battle between liberal and conservative interests and a week of televised confirmation hearings, the Senate rejected Bork.

Reagan’s second nomination, of Judge Douglas H. Ginsburg, also failed when the former Harvard Law School professor admitted that he had regularly smoked marijuana. Finally, Reagan found a replacement for Powell in Judge Anthony M. Kennedy of Sacramento.

Senate Democrats hoped that the new justice would be “another Lewis Powell,” and his nomination was approved unanimously. And to a considerable extent, Kennedy has followed the middle-road course set by his predecessor.

Powell was born Sept. 19, 1907, in Suffolk, Va., near Norfolk, and was the son of a furniture maker. He attended Washington & Lee University, where he was a member of the Phi Beta Kappa honorary society and president of the student body. His legal education came at Washington & Lee, where he graduated first in his class in 1931, and at Harvard University, where he spent a year as a graduate law student before returning to Richmond to practice law.

He married Josephine M. Rucker in 1936 and was the father of three daughters and one son. His wife died two years ago.

In World War II, Powell served as a member of a supersecret Allied Unit in Bletchley, England, engaged in cracking German war codes.

After the war, he went into private law practice in Richmond and generally represented corporations. He served as president of the American Bar Assn. in 1965 and the American College of Trial Lawyers in 1969.

He Was ‘Exceptionally Wise,’ Stevens Says

Nixon elevated him to the Supreme Court upon the death of Justice Hugo Black.

He joined a court that had powerful liberals, such as Justices William J. Brennan and Thurgood Marshall, and staunch conservatives, such as Rehnquist, but he joined neither faction. He won unstinting praise, however, as a model Supreme Court justice.

“I prized my association and friendship with him throughout his 15 years of service on the court and after his retirement in 1987,” Rehnquist said in a statement issued by the court. “He was the very embodiment of ‘judicial temperament’: receptive to the ideas of his colleagues, fair to the parties to the case but ultimately relying on his own seasoned judgment.”

“Lewis Powell was a true gentleman, a loyal and exceptionally wise man,” added Justice John Paul Stevens. “He served the country that he loved faithfully and as well as anyone I have ever known.”

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His Influence on the Court

President Richard M. Nixon nominated Lewis Franklin Powell, Jr. to the Supreme Court on Oct. 21, 1971. His confirmation by the Senate was quick and overwhelming, with an 8-1 vote. Much of his 16 years on the Supreme Court was spent establishing compromise between a court evenly split along ideological lines. He retired on June 26, 1987.

His influence is seen in the following rulings:

FIRST AMENDMENT

June 1972: He wrote the majority opinion upholding the right of the owner of a shopping plaza to limit the distribution of anti-war pamphlets on his property.

June 1974: Powell ruled that a non-public figure could recover damages from the media for “negligence” instead of the previous and more exacting standard of “actual malice.”

April 1978: In First National Bank vs. Bellotti, writing for the majority, Powell maintained that the right of a corporation to donate to a political campaign is protected political speech.

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RACIAL DISCRIMINATION

July 1974: In Milliken vs. Bradley, he voted against achieving integration by busing students across school district lines.

April 1977: In Village of Arlington Heights vs. Metropolitan Housing Development Corporation, Powell wrote that zoning boards could restrict low-income housing as long as their motive was not racial.

June 1978: Powell developed a compromise position between two groups of judges in University of California Regents vs. Bakke. He asserted that colleges were entitled to pursue diversity as a goal, but they were not allowed to use quota systems based on race to achieve that goal.

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PRESIDENTIAL POWER

June 1972: Powell wrote that the president could not use electronic surveillance domestically without a warrant.

June 1982: Powell wrote the majority opinion in Nixon vs. Fitzgerald that incumbent presidents are immune from civil damage suits for actions they take while in office.

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ON ABORTION

January 1973: In Roe vs. Wade Powell sided with the majority opinion that the decision of a woman whether to perform an abortion during her first trimester of pregnancy was protected under the 14th Amendment.

June 1983: Powell wrote in Planned Parenthood Assn. of Kansas City, Missouri vs. Ashcroft, Ashcroft that a Missouri law requiring a minor to obtain parental or judicial consent before obtaining an abortion was constitutional.

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ON SELF-INCRIMINATION

May 1972: Powell wrote in Kastigar vs. United States the majority opinion that any evidence obtained under a grant of immunity cannot be used in any subsequent prosecution of that person.

Researched by TRICIA FORD / Los Angeles Times