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Lewis F. Powell

This article is about the US Supreme Court Justice. For the conspirator in the assassination of Abraham Lincoln, see Lewis Powell (assassin).

Lewis F. Powell, Jr.
Associate Justice of the United States Supreme Court
In office
January 7, 1972[1] – June 26, 1987
Nominated by Richard M. Nixon
Preceded by Hugo Black
Succeeded by Anthony Kennedy
Personal details
Born Lewis Franklin Powell, Jr.
(1907-09-19)September 19, 1907
Suffolk, Virginia
Died August 25, 1998(1998-08-25) (aged 90)
Richmond, Virginia
Political party Democratic Party
Alma mater Washington and Lee University
Washington and Lee University School of Law
Harvard Law School
Religion Presbyterian

Lewis Franklin Powell, Jr. (September 19, 1907 – August 25, 1998) was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was known for drafting the Powell Memorandum, a confidential memorandum for the US Chamber of Commerce that described a road map to defend and further their concept of free-enterprise capitalism against real and/or perceived socialist, communist, and fascist cultural trends.[2]

Early life

Powell was born in Suffolk, Virginia. He attended Washington and Lee University, earning both an undergraduate and a law degree from that university. He was elected president of student body as an undergraduate with the help of Mosby G. Perrow, Jr., and the two would later serve together on the Virginia State Board of Education in the 1960s.[3] Powell was a member of Phi Kappa Sigma fraternity and the Sigma Society.[4] At a leadership conference, he met Edward R. Murrow and they became close friends. He attended Harvard Law School for a master's degree.

In 1936, he married Josephine Pierce Rucker, with whom he had three daughters and one son. Powell's wife died in 1996.

During World War II, he served years in Europe and North Africa. He started as a First Lieutenant, and eventually rose to the rank of Colonel. He worked mostly in intelligence, decoding German messages.

Powell was a partner for over a quarter of a century at Hunton, Williams, Gay, Powell and Gibson, a large Virginia law firm, with its primary office in Richmond (now known as Hunton & Williams LLP). Powell practiced primarily in the areas of corporate law (especially in the field of mergers and acquisitions) and in railway litigation law. He had been a board member of Philip Morris between 1964 until his court appointment in 1971 and had acted as a contact point for the tobacco industry with the Virginia Commonwealth University. Through his law firm, Powell represented the Tobacco Institute and various tobacco companies in numerous law cases.

Virginia government

Powell also played an important role in local community affairs. From 1952 to 1961, he was Chairman of the Richmond School Board. Powell presided over the school board at a time when the Commonwealth of Virginia was locked in a campaign of defiance against the Supreme Court's decision in Brown v. Board of Education. (Powell's law firm had represented one of the defendant school districts in the case that was decided by the Supreme Court under the "Brown" label. Powell did not take any part in his law firm's representation of that client school district. The lawsuit, Davis v. County School Board of Prince Edward County, later became one of the five cases decided under the caption Brown v. Board of Education before the Supreme Court of the United States in 1954.)

The Richmond School Board had no authority at the time to force integration, however, as control over attendance policies had been transferred to the state government. Powell, like most white Southern leaders of his day, did not speak out against the state's defiance, but he would foster a close relationship with many black leaders, such as civil rights lawyer Oliver Hill, some of whom offered key support for Powell's nomination. Powell swore in Virginia's first black governor, Douglas Wilder, in 1990. Powell was President of the American Bar Association from 1964–1965. He had previously chaired the American Bar Association's Standing Committee on the Economics of Law Practice which later evolved into the ABA Law Practice Management Section. Powell led the way in attempting to provide legal services to the poor, and he made a key decision to cooperate with the federal government's Legal Services Program. Powell was also involved in the development of Colonial Williamsburg, where he was both a trustee and general counsel.

Powell Memorandum

Based in part on his experiences as a corporate lawyer and as a representative for the tobacco industry with the Virginia legislature, he wrote the Powell Memorandum to a friend at the US Chamber of Commerce. The memo called for corporate America to become more aggressive in molding politics and law in the US and may have sparked the formation of several influential right-wing think tanks[5] as well as inspiring the U.S. Chamber of Commerce to become far more politically active.

In August 1971, prior to accepting President Nixon's request to become Associate Justice of Supreme Court, Lewis Powell sent the "Confidential Memorandum" with the title, "Attack on the American Free Enterprise System." Powell argued, "The most disquieting voices joining the chorus of criticism came from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians." In the memorandum, Powell advocated "constant surveillance" of textbook and television content, as well as a purge of left-wing elements.

This memo foreshadowed a number of Powell's most notable[neutrality is disputed] court opinions, especially First National Bank of Boston v. Bellotti, which shifted the direction of First Amendment law by declaring that corporate financial influence of elections through independent expenditures should be protected with the same vigor as individual political speech. Much of the future Court opinion in Citizens United v. Federal Election Commission relied on the same arguments raised in Bellotti.

Supreme Court tenure

In 1969, President Nixon asked him to join the Supreme Court, but Powell turned him down. In 1971, Nixon asked him again. Powell was unsure, but Nixon and his Attorney General, John N. Mitchell, persuaded him that joining the Court was his duty to the nation.[6] One of the primary concerns that Powell had was the effect leaving his law firm and joining the high court would have on his personal financial status, as he enjoyed a very lucrative private practice at his law firm. Another of Powell's major concerns was that, as a corporate attorney, he would be unfamiliar with many of the issues that would come before the Supreme Court, which at that time, as today, heard very few corporate law cases. Powell feared this would place him at a disadvantage and make it unlikely that he would be able to influence his colleagues.

He and William Rehnquist were nominated by President Nixon on the same day to serve on the Court. Powell took over the seat of Hugo Black after he was confirmed by the Senate 89-1 on December 7, 1971 (the lone "nay" came from Oklahoma Democrat Fred R. Harris). On the day of Powell's swearing-in, when Rehnquist's wife Nan asked Josephine Powell if this was the most exciting day of her life, Josephine reportedly said, "No, it is the worst day of my life. I am about to cry."

Lewis Powell served from January 7, 1972 until June 26, 1987, when he resigned.

Powell compiled a conservative record on the Court, at the same time cultivating a reputation as a swing vote with a penchant for compromise.[7] While on the court, he worked hard[neutrality is disputed] at familiarizing himself with the issues and arguments in the cases and coming up with distinct and well-reasoned positions on them.[neutrality is disputed]

Powell was among the 7-2 majority who legalized abortion in the United States in Roe v. Wade. Powell's pro-choice stance on abortion stemmed from an incident during his Richmond law firm, when the girlfriend of one of Powell's office staff bled to death from an illegal coat hanger abortion.[8]

In Coker v. Georgia, a convicted murderer escaped from prison and in the course of committing an armed robbery and other offenses, raped an adult woman. The State of Georgia sentenced the rapist to death. Justice Powell, agreeing that the death penalty should be set aside, expressed the view that "the victim [did not] sustain serious or lasting injury."[9]

His opinion in Regents of the University of California v. Bakke (1978), joined by no other justice in full, represented a compromise between the opinions of Justice William J. Brennan, who, joined by three other justices, would have upheld affirmative action programs under a lenient judicial test, and the opinion of John Paul Stevens, also joined by three justices, who would have struck down the affirmative action program at issue in the case under the Civil Rights Act of 1964. Powell's opinion striking down the law urged that "strict scrutiny" be applied to affirmative action programs but hinted that some affirmative action programs might pass Constitutional muster. Powell, who dissented in the case of Furman v. Georgia (1972), striking down capital punishment statutes, was a key mover behind the Court's compromise opinion in Gregg v. Georgia (1976), which allowed the return of capital punishment but only with procedural safeguards.

In the controversial case of Snepp v. U.S. (1980), the Court issued a per curiam upholding the lower court's imposition of a constructive trust upon former CIA agent Frank Snepp and its requirement that he preclear all his published writings with the CIA for the rest of his life. In 1997, Snepp gained access to the files of Justices Thurgood Marshall (who had already died) and William Brennan (who voluntarily granted Snepp access) and confirmed his suspicion that Powell had been the author of the per curiam opinion. Snepp later pointed out that Powell had misstated the factual record and had not reviewed the actual case file (Powell was in the habit of writing opinions based on the briefs alone) and that the only justice who even looked at the case file was John Paul Stevens, who relied upon it in composing his dissent.[10] From his days in counter-intelligence during World War II, Powell believed in the need for government secrecy, and urged the same position on his colleagues during the Court's consideration of 1974's United States v. Nixon.

Powell wrote the majority opinion in First National Bank of Boston v. Bellotti (1978), which overturned a Massachusetts law restricting corporate contributions to referendum campaigns not directly related to their business.[11]

Powell was the swing vote in

Powell also expressed post-retirement regret over his majority opinion in McCleskey v. Kemp (1987), where he voted to uphold the death penalty against a study that demonstrated that – except as punishment for the most violent of crimes – people who killed whites were significantly more likely to receive the death penalty as punishment for their crimes than people who killed blacks.[14]

Retirement

Powell was nearly 80 years old when he retired from his position as Supreme Court justice. His career on the bench was summed up by Gerald Gunther, a professor of constitutional law at Stanford Law School, as "truly distinguished" because of his "qualities of temperament and character," which "made it possible for him, more than any contemporary, to perform his tasks in accordance with the modest, restrained, yet creative model of judging."[15]

He was succeeded by Anthony Kennedy. Kennedy was the third nominee for his position. The first, Robert Bork, was not confirmed by the United States Senate. The second, Douglas H. Ginsburg, withdrew his name from consideration after admitting to having smoked marijuana both as a college undergraduate and with his students while a law professor.

Following his retirement from the high court, Powell sat regularly on various United States Courts of Appeals around the country.

Justice Powell died at his home in the Windsor Farms area of Richmond, Virginia, of pneumonia, at 4:30 in the morning of August 25, 1998, at the age of 90. He is buried in Richmond's Hollywood Cemetery.

In her 2002 book, The Majesty of the Law, Justice Sandra Day O'Connor wrote, "For those who seek a model of human kindness, decency, exemplary behavior, and integrity, there will never be a better man."

Powell's personal and official papers were donated to Washington and Lee University School of Law, where they are open for research subject to certain restrictions. A wing at Sydney Lewis Hall, home of W&L Law, which houses his papers is named for him.

J. Harvie Wilkinson, currently a judge on Fourth Circuit, was a law clerk for Justice Powell. Wilkinson later wrote a book titled Serving Justice: A Supreme Court Clerk's View describing the experience.

In 1993, President Clinton signed into law an act of Congress renaming the Federal courthouse at Richmond, Virginia in his honor, the Lewis F. Powell, Jr. United States Courthouse.

See also

References

External links

  • The Powell Memo (as text, with notation).
  • Attack on American Free Enterprise System (pdf)
  • Internet Movie Database
  • A Call to Arms for Class War: From the Top Down
Legal offices
Preceded by
Hugo Black
Associate Justice of the Supreme Court of the United States
January 7, 1972 – June 26, 1987
Succeeded by
Anthony Kennedy

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