Last edited: February 14, 2005

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
Fax: 212-556-3622

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 country.

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 became razor-thin.

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 death.

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 wrote.

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 the future.

[Home] [News] [USA]