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About Lewis Franklin Powell, Jr.
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 also widely well regarded by contemporaries due to his personal good manners and politeness.
Powell was born in Suffolk, Virginia. He attended Washington and Lee University, garnering both an undergraduate and a law degree from that university. He was elected president of student body as an undergraduate and was a member of Phi Kappa Sigma fraternity and the Sigma Society. At a leadership conference, he met Edward R. Murrow and they became close friends. He attended Harvard Law School for a master's degree.
During World War II, he spent more than three 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 appointment in 1971 and had acted as a contact point for the tobacco industry with the Virginia Commonwealth University. Through his law firm, Hunton Williams Gay Powell & Gibson (later just Hunton & Williams) he represented the Tobacco Institute and the various tobacco companies in numerous law cases.
In 1936, he married Josephine Pierce Rucker, with whom he had three daughters and one son. Powell's wife died in 1996.
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. (Interestingly, Powell's law firm had represented one of the defendant school districts in the case that was decided by the U.S. 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, though 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 proudly swore in Virginia's first black governor, Douglas Wilder, in 1990. Powell was President of the American Bar Association from 1964–1965, where he enjoyed an enormously productive tenure. 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.
The 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 Memo to a friend at the U.S. Chamber of Commerce. The memo called for corporate America to become more aggressive in molding politics and law in the U.S. and may have sparked the formation of one or more influential right-wing think tanks.
In August 1971, prior to accepting Nixon's request to become Associate Justice of Supreme Court, Lewis Powell had sent to the leadership of the U.S. Chamber of Commerce the "Confidential Memorandum", better known as the Powell Memorandum, and still under the radar of general public. It sounded an alarm with its title, "Attack on the American Free Enterprise System." The previous decade had seen the increasing regulation of many industries. 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.
In an extraordinary prefiguring of the social goals of business that would be felt over the next three decades, Powell set his main goal: changing how individuals and society think about the corporation, the government, the law, the culture, and the individual. Shaping public opinion on these topics became, and would remain, a major goal of business.
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. 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. 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 decidedly moderate record on the Court, cultivating a reputation as a swing vote with a penchant for compromise. (The most detailed account of Justice Powell's Supreme Court tenure is in John Calvin Jeffries's biography Lewis F. Powell). While on the court, he worked hard at familiarizing himself with the issues and arguments in the cases and coming up with distinct and well-reasoned positions on them.
For example, 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. From his days in counter-intelligence during World War II, Powell had developed a great respect for the need for government secrecy, a concern he also urged 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.
Powell was the swing vote in Bowers v. Hardwick 478 U.S. 186 (1986), in which the Court upheld Georgia's sodomy laws. He was reportedly conflicted over how to vote. A conservative clerk advised him to uphold the ban, and Powell, who believed he had never met a gay person (not realizing that one of his own clerks was a closeted homosexual), voted to uphold Georgia's law, though Powell in a concurring opinion expressed concern at the length of the prison terms prescribed by the law. The Court, 17 years later, expressly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003).
In 1990, after his retirement from the Court, he said, "I think I made a mistake in the Hardwick case," marking one of the few times a justice expressed regret for one of his previous votes.
Powell also expressed post-retirement regret over his majority opinion in McCleskey v. Kemp, 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.
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."
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 as a law professor with his students.
Following his retirement from the high court, Powell sat regularly on various United States Courts of Appeals around the country, especially enjoying sitting on circuit courts venued in temperate climes during the winter months.
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.
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 couthouse at Richmond, Virginia in his honor, the Lewis F. Powell, Jr. United States Courthouse.