Lewis F. Powell, Jr.

Lewis Powell
Associate Justice of the Supreme Court of the United States
In office January 7, 1972 – June 26, 1987[1]
Nominated by	Richard Nixon
Preceded by	Hugo Black
Succeeded by	Anthony Kennedy
Personal details
Born	Lewis Franklin Powell, Jr. September 19, 1907 Suffolk, Virginia, U.S.
Died	August 25, 1998 (aged 90) Richmond, Virginia, U.S.
Political party	Democratic[2]
Alma mater	Washington and Lee University Harvard University
Religion	Presbyterianism

Lewis Franklin Powell, Jr. (September 19, 1907 – August 25, 1998) was an Associate Justice of the Supreme Court of the United States. 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 the Chamber of Commerce's concept of free-enterprise capitalism against perceived socialist, communist, and fascist cultural trends.^[3] Powell compiled a conservative record on the Court, at the same time cultivating a reputation as a swing vote with a penchant for compromise. He retired from the Supreme Court after fifteen years of service.

Early life

Powell was born in Suffolk, Virginia, the son of Mary Lewis (Gwathmey) and Louis Franklin Powell, Sr.^[4] He attended Washington and Lee University, earning both an undergraduate (1929) and a law degree (1931). He was elected president of student body as an undergraduate with the help of Mosby G. Perrow, Jr., and the two served together on the Virginia State Board of Education in the 1960s.^[5] Powell was a member of Phi Kappa Sigma fraternity and the Sigma Society.^[6] At a leadership conference, he met Edward R. Murrow and they became close friends.^[7] In 1932 Powell received a master's degree from Harvard Law School.^[8]

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

World War II

During World War II, he first tried to join the Navy. After he was rejected because of poor eyesight, he joined the Army Air Forces as an Intelligence officer. After receiving his commission as a First Lieutenant in 1942, he completed training at bases near Miami, Florida and Harrisburg, Pennsylvania. He was then assigned to the 319th Bombardment Group, which moved to England later that year. He served in North Africa during Operation Torch, and was later assigned to the Headquarters of the Northwest African Air Forces. While with this organization Powell served in Sicily during Operation Husky.

In August, 1943 he was assigned to the Intelligence staff of the Army Air Forces in Washington, D.C. Slated for assignment as an instructor at the facility near Harrisburg, Powell instead worked on several special projects for the AAF headquarters until February, 1944. He was then assigned to the Intelligence staff of the War Department, and later the Intelligence staff of United States Strategic Air Forces in Europe. Powell was assigned to the Ultra project as one of the officers designated to monitor the use of intercepted Axis communications. In this role, he worked in England and in the Mediterranean Theater, and ensured that the use of Ultra information was in compliance with the laws and rules of war, and that the use of such information did not reveal the source, which would alert Axis that their code had been broken. He advanced through the ranks to Colonel, and received the Legion of Merit, Bronze Star Medal, and French Croix de Guerre with bronze palm. He was discharged in October, 1945.^[9]

Legal career

In 1941, Powell served as Chairman of the American Bar Association's Young Lawyers Division.^[10]

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 from 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.

Powell served as Chair of the American Bar Association's Standing Committee on the Economics of Law Practice from 1961-1962 which later evolved into the current ABA Law Practice Division. During his tenure as Chair of the Committee The Lawyers Handbook was first published and distributed to all attorneys who joined the ABA that year. In its preface, Powell wrote, The basic concept of freedom under law, which underlies our entire structure of government, can only be sustained by a strong and independent bar. It is plainly in the public interest that the economic health of the legal profession be safeguarded. One of the means toward this end is to improve the efficiency and productivity of lawyers.^[11]

He was subsequently elected President of the American Bar Association from 1964–1965. As President of the ABA, 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.

Virginia government

Powell also played an important role in local community affairs. He served on the Richmond School Board beginning in 1951, and was Chairman from 1952 to 1961. 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 did foster a close relationship with many black leaders, such as civil rights lawyer Oliver Hill, some of whom offered key support for Powell's Supreme Court nomination. Powell swore in Virginia's first black governor, Douglas Wilder, in 1990.

From 1961 to 1969 Powell served on the Virginia Board of Education, and he was Chairman from 1968 to 1969.^[12]

Powell Memorandum

On August 23, 1971, prior to accepting President Nixon's nomination to the Supreme Court, Powell sent the "Confidential Memorandum" titled "Attack on the American Free Enterprise System" to a friend at the US Chamber of Commerce.^[13] It was based in part on his experiences as a corporate lawyer and as a representative for the tobacco industry with the Virginia legislature. 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 and lobbying organizations, such as The Heritage Foundation and the American Legislative Exchange Council (ALEC), as well as inspiring the U.S. Chamber of Commerce to become far more politically active.^[14][15] Marxist academic David Harvey traces the rise of neoliberalism in the US to this memo.^[16][17]

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. He named consumer advocate Ralph Nader as the chief antagonist of American business.^[18]

This memo foreshadowed a number of Powell's 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.

Though written confidentially for Eugene Syndor at the Chamber of Commerce, it was discovered by Washington Post columnist Jack Anderson, who reported on its content a year later (after Powell had joined the Supreme Court). Anderson focused on the efforts of Powell to undermine the democratic process (at least as Anderson saw it); however, in terms of business's view of itself in relation to government and public interest groups, the memo did little but convey the thinking among businessmen at the time. The real contribution of the memo, instead, was its emphasis on institution building, particularly updating the Chamber's efforts to influence federal policy. Here, it would be greatly influential in motivating the Chamber and other groups to modernize their efforts to lobby the federal government.^[19]

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.^[20] 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.

Nixon nominated Powell and William Rehnquist to the Court on the same day, October 21, 1971.^[21] 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 said, "No, it is the worst day of my life. I am about to cry."^[22]

Lewis Powell served from January 7, 1972 until June 26, 1987, when he retired from the Court. Powell compiled a conservative record on the Court, at the same time cultivating a reputation as a swing vote with a penchant for compromise.^[23]

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.^[24]

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, acknowledging that the woman had been raped, expressed the view that "the victim [did not] sustain serious or lasting injury,"^[25] and voted to set the death penalty aside.

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.^[26] 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.^[27]

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 Michael W. Mosman 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 sodomy law, though Powell in a concurring opinion expressed concern at the length of the prison terms prescribed by the law.^[28] 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.^[29]

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. In an interview with his biographer he even stated that he would abolish the death penalty altogether.^[30]

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."^[31]

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.

In 1990, Douglas Wilder asked Powell to swear him in as governor of Virginia, and the first African-American governor in the United States.^[32]

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 the 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 Bill 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

List of Justices of the Supreme Court of the United States List of law clerks of the Supreme Court of the United States List of United States Supreme Court Justices by time in office

United States Supreme Court cases during the Burger Court United States Supreme Court cases during the Rehnquist Court

References

1. "Members of the Supreme Court of the United States". Supreme Court of the United States. Retrieved April 26, 2010.
2. Joan Biskupic and Fred Barbash, Washington Post, Retired Justice Lewis Powell Dies at 90, August 26, 1998
3. Greenpeace USA, Investigations: Lewis Powell Memo, August 22, 2011
4. "Powell, Lewis F. (1907 - 1998), U.S. Supreme Court Justices, Lawyers". oup.com. Retrieved June 24, 2015.
5. Mosby G. Perrow, Jr. Obituary--"The Daily Advance," Lynchburg, VA May 31, 1973.
6. John Calvin Jeffries, Justice Lewis F. Powell, Jr., 2001, page 31
7. Norman Finkelstein, With Heroic Truth: The Life of Edward R. Murrow, 2005, page 36
8. Timothy L. Hall, Supreme Court Justices: A Biographical Dictionary, 2001, page 393
9. John Calvin Jeffries, Justice Lewis F. Powell, Jr., 2001, pages 60-114
10. A.B.A., YLD Directory, 1997-1998, p. 18.
11. "American Bar Association Law Practice Division Leadership Directory 2013-2014"
12. Hall, Timothy L. (2001). Supreme Court Justices: A Biographical Dictionary. Facts on File. p. 393. ISBN 978-0816041947.
13. Powell, Jr., Lewis F. (August 23, 1971). "Attack of American Free Enterprise System". Archived from the original on January 16, 2012. Retrieved March 1, 2016.
14. Charlie Cray (23 August 2011). The Lewis Powell Memo - Corporate Blueprint to Dominate Democracy. Greenpeace. Retrieved 1 January 2014.
15. Bill Moyers (2 November 2011). How Wall Street Occupied America. The Nation. Retrieved 1 January 2014.
16. David Harvey (2005). A Brief History of Neoliberalism. Oxford University Press. ISBN 0199283273 p. 43.
17. Kevin Doogan (2009). New Capitalism. Polity. ISBN 0745633250 p. 34.
18. Chris Hedges (5 April 2010). How the Corporations Broke Ralph Nader and America, Too. Truthdig. Retrieved 1 January 2014.
19. Benjamin C. Waterhouse. Lobbying America: The Politics of Business from Nixon To Nafta. Princeton University Press. pp. 59–60. ISBN 978-0-691-14916-5.
20. Bob Woodward; Scott Armstrong (1981). The Brethren: Inside the Supreme Court. Avon Books. p. 188. ISBN 978-0-380-52183-8.
21. Nixon, Richard (October 21, 1971). "Address to the Nation Announcing Intention To Nominate Lewis F. Powell, Jr., and William H. Rehnquist To Be Associate Justices of the Supreme Court of the United States". The American Presidency Project. UCSB. Retrieved March 1, 2016.
22. Jeffries, John Calvin (2001-01-01). Justice Lewis F. Powell, Jr. Fordham Univ Press. p. 1. ISBN 9780823221103.
23. A detailed account of Justice Powell's Supreme Court tenure is in John Calvin Jeffries's biography Lewis F. Powell.
24. "Rob Portman, Nancy Reagan and the Empathy Defeicit." The Huffington Post. March 4, 2013. Accessed April 7, 2013.
25. Coker v. Georgia, 433 U.S. 584, 601 (1977) (Powell, J., concurring)
26. Frank Snepp, Irreparable Harm: A Firsthand Account of How One Agent Took On the CIA in an Epic Battle Over Secrecy and Free Speech (New York: Random House, 1999), 349–350.
27. 435 U.S. 765 (1978)
28. Stephanie Mencimer, High Court Homophobia (July/August 2001), The Washington monthly.
29. Nat Hentoff, Infamous Sodomy Law Struck Down, Village Voice, December 16–22, 1998.
30. John C. Jeffries, Jr., Justice Lewis F. Powell, Jr.: A Biography 451 (1994).
31. Freeman, Anne Hobson: The Style of A Law Firm (1989), Algonquin Books, p. 193.
32. http://www.nytimes.com/1998/08/26/us/lewis-powell-crucial-centrist-justice-dies-at-90.html

External links

• The Powell Memo (as text, with notation).
• Attack on American Free Enterprise System (pdf)
• Lewis F. Powell, Jr. at the Internet Movie Database
• A Call to Arms for Class War: From the Top Down
• Noam Chomsky on "Powell Memorandum", Student Debt, and Occupy