Black Robes Don’t Make the Justice, but the Rest of His Closet Just Might
New York Times,
December 4, 2002
229 W. 43rd Street, New York, NY 10036
By Linda Greenhouse
WASHINGTON—Justice Lewis F. Powell Jr. left the
Supreme Court 15 years ago, but there was no escaping his memory when the
court announced this week that it would revisit both affirmative action and
gay rights in the coming months.
Justice Powell held the balance of power on both issues in the 1980’s and
consequently played the central role in shaping the precedents that the court
is now reconsidering.
His embrace of racial diversity as a valid goal in university admissions,
expressed in a solitary opinion in the 1978 Bakke case to which no
other justice subscribed, not only established a rationale for affirmative
action but frames the current debate a generation later.
His vote with the 5-to-4 majority in Bowers v. Hardwick in 1986
resulted in the court upholding a criminal sodomy law and rejecting the
argument that the Constitution offered a right to privacy for the intimate
relations of gay couples in their own homes.
It is an ambiguous legacy, as Justice Powell acknowledged in 1990 when he
told students at New York University Law School that he had taken a second
look at the Bowers case and regretted his vote. "I think I
probably made a mistake in that one," he said.
The court today almost certainly remains divided on both issues, and on a
closely divided court, of course, every vote matters. Justice Powell’s
particular legacy illustrates a somewhat different point: that on a court
composed of human beings, biography matters.
The fact is that Lewis Powell, who died in 1998 just short of his 91st
birthday, was a person of a particular time and place, a patrician son of the
Old South, who transcended his origins in some ways and not in others, and who
drew particular lessons from some singular life experiences. The same could be
said of many people, if not most. The difference is that Supreme Court
justices, including those now on the court and any future appointees, may be
in a position to apply their life lessons in shaping the law for an entire
Lewis Powell was born into an old Virginia family that was collaterally
descended from one of the original Jamestown colony settlers. Returning to
Richmond after distinguished service in Europe in World War II, he made his
mark in law practice and civic leadership. He was the appointed chairman of
the Richmond school board during the tumultuous period following the Supreme
Court’s desegregation ruling in Brown v. Board of Education. While
Richmond was no quicker to integrate than anywhere else in the South, Powell
used his position to reject the "massive resistance" that was
advocated by other members of the local establishment. The schools remained
open, and Richmond avoided the disastrous conflicts that swept over other
parts of the region.
His former law clerk and biographer, John C. Jeffries Jr., now the dean of
the University of Virginia Law School, said in an interview today that while
Justice Powell was far from a liberal on racial issues, he understood the need
for the country to address its damaging legacy of racism. In his approach to
affirmative action in college admissions, "the justification was
necessity," Professor Jeffries said.
A sense of necessity also informed Justice Powell’s view of abortion. He
joined the original majority in Roe v. Wade and never wavered in his
support for abortion rights as the years passed and the margin on the court
In his book, "Justice Lewis F. Powell Jr.," published in 1993,
Professor Jeffries recounted a dramatic incident from Powell’s years as a
senior partner at a Richmond law firm. A distraught 19-year-old office helper
called him at home in the middle of the night and asked to meet him at the
office. The young man’s girlfriend had become pregnant. He had tried to help
her abort herself, but the procedure went terribly wrong and she had bled to
Powell went to see the local prosecutor, with the result that no charges
were ever filed. "This incident convinced Powell that women would seek
abortions whether they were legal or not and that driving the practice
underground led to danger and death," Professor Jeffries wrote.
By contrast to his familiarity with racial issues and with abortion,
Justice Powell, who was 79 when Bowers v. Hardwick reached the court,
had no personal experience with gay rights and found the issues raised by the
case confusing and somewhat threatening. "I don’t believe I’ve ever
met a homosexual," he told one of his law clerks while the case was
pending. As Professor Jeffries recounted the incident, the law clerk, who in
fact was gay, told the justice, "Certainly you have, but you just don’t
know that they are."
A book published last year on the history of the gay rights issue at the
Supreme Court, "Courting Justice," by Joyce Murdoch and Deb Price,
asserted that there have been at least 22 gay law clerks at the court, and
that in each of six consecutive terms in the 1980’s, one of Justice Powell’s
four law clerks was gay. "Doubts still gnaw at Powell’s ex-clerks about
whether they could or should have done more to educate him," the authors
Justice Powell never explained precisely why he changed his mind after the
fact in Bowers v. Hardwick. On rereading the case, "I thought the
dissent had the better of the arguments," he told a reporter in 1990.
It is hardly uncommon for justices to draw conscious or unconscious lessons
from their own lives. Justice Byron R. White, who wrote the majority opinion in
Bowers v. Hardwick and dissented in Roe v. Wade, was a fairly
reliable conservative for most of his three decades on the court. But his
formative professional experience was as a senior Justice Department official
in the Kennedy administration, overseeing civil rights enforcement, and he
never retreated from his belief that a strong federal government could be a
force for good.
"One need not be a sexist to share the intuition that in certain cases
a person’s gender and resulting life experiences will be relevant to his or
her view of the case," Justice Sandra Day O’Connor wrote in a 1994 case
on jury selection.
"Self-consciousness and candor are the ideals" in a judge, Prof.
Laurence H. Tribe of Harvard Law School said in an interview. "Judges are
most dangerous when they think they’ve escaped the past and become victims
of their own myth."
The challenge for presidents who select justices, and for senators who vote
on whether to confirm them, is to assess the entirety of a nominee’s life
experiences and decide which may be relevant, and in what ways, to issues that
may matter only years in the future. If speculation about impending
retirements on the Supreme Court proves correct, an end-of-term retirement
announcement might well coincide with late June decisions in the affirmative
action and gay rights cases the court accepted on Monday. Then Justice Powell’s
memory would be salient not only for the past decisions that are his judicial
legacy but also for the lessons his life story offers to those who would shape
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