Businessweek Archives

The High Court's Man In The Middle


Books

THE HIGH COURT'S MAN IN THE MIDDLE

During the racial turbulence of the 1950s and 1960s, Lewis F. Powell Jr., then a prominent corporate attorney, never repudiated the segregationist stands of his peers in Richmond, Va. He served on the city and state school boards, which were among the nation's most defiant when it came to the Supreme Court's 1954 order to desegregate. So it was hardly surprising when, in 1974, as a justice on the high court, Powell cast the deciding vote to limit the obligation of Detroit area schools to bus pupils between the black inner city and the predominantly white suburbs.

As John C. Jeffries Jr.'s engaging biography of the retired justice reveals, although Powell advocated judicial restraint--the idea that judges should be guided by legal precedent rather than political beliefs--his key decisions were as much influenced by his background as by the law. At the same time, Powell often overcame his instinctive conservatism to act as the court's consensus maker. Consequently, he played a pivotal role from his 1972 appointment until his 1987 retirement--an eventful era when the court confronted some of the most pressing social issues of our time.

To research the book, Jeffries, a University of Virginia law professor who once clerked for Powell, pored over the jurist's private papers and interviewed him at length. The resulting hefty tome is evenly divided between Powell's life before he joined the Court at age 65 and a discussion of five controversial areas in which his votes helped change the course of the law: school desegregation, abortion, the death penalty, Presidential immunity, and affirmative action.

The first half is rich in stories that illuminate Powell's personality. Although a descendant of a Jamestown settler and the paragon of the Southern gentleman lawyer by the time he was appointed, Powell had less-than-genteel origins. His father, who ran a Richmond cigar-box company, was strict and demanding, and Lewis hated the many chores he imposed--especially feeding and milking the cow. Decades later, his father would remark "rather more often than I thought necessary," says Powell, that he couldn't believe his son was on the Supreme Court.

Despite his resentment, Powell never rebelled. And the habit of hard work paid off when he led his class at Washington & Lee University law school. After graduating in 1931, he married the daughter of his family doctor and joined Richmond's premier law firm. He was a civic leader and president of the American Bar Assn. The one unexpectedly exciting interlude in his oh-so-proper life was his stint as a World War II intelligence officer in a top-secret project to break German military codes.

It was President Richard M. Nixon who named the Southern Democrat to the Supreme Court. Although Powell had no judicial experience, the President wanted a Southerner, and Powell was prominent in the national bar. In addition, his disdain for the increasing tolerance shown criminal defendants appealed to the President.

Jeffries depends on facts and color, rather than analysis, to describe Powell's judicial approach. It seems clear that the justice's penchant for the middle ground came from his nonconfrontational personality rather than a particular philosophy. His favorite decision was in Regents of the University of California vs. Bakke in 1978, when his compromise broke a deadlock. Allan Bakke, a white man who had been rejected by the University of California at Davis Medical School, alleged that the school's affirmative-action admissions program discriminated against him. When four liberal justices voted to uphold the school's plan and four conservatives voted to abolish affirmative action, Powell bridged the gap. His ruling struck down the school's minority-admissions plan, letting Bakke matriculate, but upheld affirmative-action programs that didn't involve quotas. The opinion saved one of the few devices--however flawed--to accelerate racial equality.

Powell's sense of propriety may partly explain his deciding vote in 1986 to uphold a Georgia law criminalizing sodomy. Jeffries ascribes his position to a "willed ignorance" of homosexuality. Powell once remarked during a closed-door decision conference that he had never known a homosexual. Justice Harry A. Blackmun, a contemporary of Powell but a bit more hip, told his clerks afterward that he wanted to tell Powell that some of Powell's former clerks were gay--but he never did.

Years later, Powell told Jeffries he regretted that vote. Gays, he said, should be accorded the same privacy rights that, a decade earlier, he had voted to grant women in Roe vs. Wade. Powell, Jeffries reveals, also has second thoughts about capital punishment. In 1991, he said that he would reverse all his votes upholding the death penalty, because death-row appeals undermine the rule of law. Writes Jeffries: "The endless waiting, merry-go-round litigation, last-minute stays, and midnight executions offended Powell's...conception of the majesty of the law."

The book's major flaw is its adulatory tone. While Jeffries acknowledges Powell's limitations, he seems intent on canonizing him, which actually undermines his assessment of Powell's achievements. Nonetheless, Jeffries' entertaining narrative ably captures Powell's character and conveys the wrenching nature--and lasting relevance--of the issues he helped decide.CATHERINE YANG


China's Killer Profits
LIMITED-TIME OFFER SUBSCRIBE NOW
 
blog comments powered by Disqus