Lewis Franklin Powell, Jr.
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Lewis Franklin Powell Jr. (September 19, 1907 – August 25, 1998) was an American lawyer and jurist who served as an
Associate Justice of the Supreme Court of the United States An associate justice of the Supreme Court of the United States is any member of the Supreme Court of the United States other than the chief justice of the United States. The number of associate justices is eight, as set by the Judiciary Act of 18 ...
from 1972 to 1987. Born in
Suffolk, Virginia Suffolk is an independent city in the Commonwealth of Virginia, and as such has no county. As of the 2020 census, the population was 94,324. It is the 9th most populous city in Virginia and the largest city in Virginia by boundary land area as ...
, he graduated from both Washington and Lee Law School and
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each class ...
and served in the United States Army Air Forces during World War II. He worked for
Hunton & Williams Hunton Andrews Kurth LLP is an American law firm created by the merger of Hunton & Williams LLP and Andrews Kurth Kenyon LLP on April 2, 2018. The firm has offices in 20 cities, primarily in the United States. History Hunton & Williams (formerl ...
, a large law firm in
Richmond, Virginia (Thus do we reach the stars) , image_map = , mapsize = 250 px , map_caption = Location within Virginia , pushpin_map = Virginia#USA , pushpin_label = Richmond , pushpin_m ...
, focusing on corporate law and representing clients such as the Tobacco Institute. His Powell Memorandum became the blueprint for the rise of the American conservative movement and the formation of a network of influential right-wing think tanks and lobbying organizations, such as The Heritage Foundation and the American Legislative Exchange Council. In 1971, President Richard Nixon appointed Powell to succeed Associate Justice
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an associate justice of the U.S. Supreme Court from 1937 to 1971. A ...
. He retired from the Court during the administration of President
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
, and was eventually succeeded by Anthony Kennedy. His tenure largely overlapped with that of Chief Justice Warren Burger, and Powell was often a key swing vote on the Burger Court. His majority opinions include ''
First National Bank of Boston v. Bellotti ''First National Bank of Boston v. Bellotti'', 435 U.S. 765 (1978), is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amen ...
'' and ''
McCleskey v. Kemp ''McCleskey v. Kemp'', 481 U.S. 279 (1987), is a United States Supreme Court case, in which the death penalty sentencing of Warren McCleskey for armed robbery and murder was upheld. The Court said the "racially disproportionate impact" in the Geor ...
'', and he wrote an influential opinion in '' Regents of the University of California v. Bakke''. He notably joined the majority in cases such as '' United States v. Nixon'', ''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
'', ''
Plyler v. Doe ''Plyler v. Doe'', 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down both a state statute denying funding for education of undocumented immigrant children in the United States and an independent school distr ...
'', and '' Bowers v. Hardwick''.


Early life and education

Powell was born in
Suffolk, Virginia Suffolk is an independent city in the Commonwealth of Virginia, and as such has no county. As of the 2020 census, the population was 94,324. It is the 9th most populous city in Virginia and the largest city in Virginia by boundary land area as ...
, the son of Mary Lewis (Gwathmey) and Louis Franklin Powell. Powell set out to attend Washington and Lee University where he became president of his fraternity, managing editor of the student newspaper, and a member of the yearbook staff. His major was in commerce, but he also studied law. Powell had always planned on becoming a lawyer because he viewed their roles as shaping history. He graduated in 1929 with a B.A. ''
magna cum laude Latin honors are a system of Latin phrases used in some colleges and universities to indicate the level of distinction with which an academic degree has been earned. The system is primarily used in the United States. It is also used in some So ...
'' and Phi Beta Kappa. He also was named recipient of the
Algernon Sydney Sullivan Award The Algernon Sydney Sullivan Award is an award presented to graduating seniors, alumni, and faculty of selected colleges and universities in the Southern United States for excellence of character and service to humanity. The awards stem from the ...
for "generous service to others". Powell then attended Washington and Lee University School of Law and in 1931 graduated first in his class. He received a Master of Laws degree from
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each class ...
in 1932, wrote a LL.M. thesis, entitled "Relation between the Virginia Court of Appeals and the State Corporation Commission", and was one of two U.S. Supreme Court justices to have earned an LL.M. degree. He was elected president of the student body as an undergraduate with the help of
Mosby Perrow Jr. Mosby Garland Perrow, Jr. (born March 5, 1909 – May 31, 1973) was a Virginia lawyer and state senator representing Lynchburg, Virginia . A champion of Virginia's public schools, Perrow became a key figure in Virginia's abandonment of " Massiv ...
, and the two served together on the Virginia State Board of Education in the 1960s. Powell was a member of Phi Kappa Sigma fraternity and the
Sigma Society The Sigma Society is a secret society at Washington and Lee University in Lexington, Virginia. Founded in 1880, it is one of the older secret societies in the United States, and remains "one of the oldest continuous social organizations at Washingt ...
. At a leadership conference, he met Edward R. Murrow, and they became close friends. In 1936, he married Josephine Pierce Rucker with whom he had three daughters and one son. She died in 1996.


Career


Military service, 1939–1945

During World War II, he first tried to join the United States Navy but was rejected because of poor eyesight, so he joined the US 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 Harrisburg is the capital city of the Commonwealth of Pennsylvania, United States, and the county seat of Dauphin County. With a population of 50,135 as of the 2021 census, Harrisburg is the 9th largest city and 15th largest municipality in Pe ...
. He was assigned to the 319th Bombardment Group, which moved to England later that year. He served in North Africa during
Operation Torch Operation Torch (8 November 1942 – Run for Tunis, 16 November 1942) was an Allies of World War II, Allied invasion of French North Africa during the Second World War. Torch was a compromise operation that met the British objective of secu ...
and was later assigned to the Headquarters of the Northwest African Air Forces. There, Powell served in Sicily during the Allied invasion of Sicily. 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, he worked instead on several special projects for the AAF headquarters until February 1944. He was then assigned to the Intelligence staff of the
Department of War War Department may refer to: * War Department (United Kingdom) * United States Department of War (1789–1947) See also * War Office, a former department of the British Government * Ministry of defence * Ministry of War * Ministry of Defence * D ...
and then the Intelligence staff of
United States Strategic Air Forces in Europe The United States Strategic Air Forces (USSTAF) was a formation of the United States Army Air Forces. It became the overall command and control authority of the United States Army Air Forces in Europe during World War II. USSTAF had started as ...
. While there Colonel Powell wrote in the aftermath of the 13-15 February 1945 Bombing of Dresden that "Personally, I consider this very fortunate indeed as the German people are being taught for the first time in modern history what it means to have war on their own soil." Powell was assigned to the Ultra project, as one of the officers designated to monitor the use of intercepted Axis communications. He worked in England and in the Mediterranean Theater and ensured that the use of Ultra information was in compliance with the laws of war, and that the use of such information did not reveal the source, which would have alerted that the code had been broken. Powell advanced through the ranks to colonel, and received the
Legion of Merit The Legion of Merit (LOM) is a military award of the United States Armed Forces that is given for exceptionally meritorious conduct in the performance of outstanding services and achievements. The decoration is issued to members of the eight ...
,
Bronze Star Medal The Bronze Star Medal (BSM) is a United States Armed Forces decoration awarded to members of the United States Armed Forces for either heroic achievement, heroic service, meritorious achievement, or meritorious service in a combat zone. Wh ...
, and French
Croix de Guerre The ''Croix de Guerre'' (, ''Cross of War'') is a military decoration of France. It was first created in 1915 and consists of a square-cross medal on two crossed swords, hanging from a ribbon with various degree pins. The decoration was first awa ...
with bronze palm. He was discharged in October 1945.


Legal career

In 1941, Powell served as Chairman of the American Bar Association's Young Lawyers Division. Powell was a partner for more than a quarter of a century at Hunton, Williams, Gay, Powell and Gibson, a large Virginia law firm, with its primary office in
Richmond Richmond most often refers to: * Richmond, Virginia, the capital of Virginia, United States * Richmond, London, a part of London * Richmond, North Yorkshire, a town in England * Richmond, British Columbia, a city in Canada * Richmond, California, ...
, now known as Hunton Andrews Kurth. Powell practiced primarily in the areas of corporate law, especially in the fields of mergers and acquisitions and railroad litigation. From 1961 to 1962 Powell served as Chair of the American Bar Association's Standing Committee on the Economics of Law Practice, which later evolved into the 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." From 1964 to 1965 he was elected 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. From 1964 until his court appointment in 1971 he was a board member of
Philip Morris Phil(l)ip or Phil Morris may refer to: Companies *Altria, a conglomerate company previously known as Philip Morris Companies Inc., named after the tobacconist **Philip Morris USA, a tobacco company wholly owned by Altria Group **Philip Morris Inter ...
and acted as a contact point for the tobacco industry with Virginia Commonwealth University. Through his law firm, Powell represented the Tobacco Institute and various tobacco companies in numerous cases.


Virginia government, 1951–1970

Powell played an important role in local community affairs. From 1951 he served on the
Richmond School Board Richmond School District (School District No. 38) is a school district based in Richmond, British Columbia, Canada. The school board serves the city of Richmond. Schools As of 2016 the district has 38 primary schools, 10 secondary schools ...
and was its 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 A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
's decision in '' Brown v. Board of Education'' (1954), which desegregated public schools. Powell's law firm, although not Powell himself, represented one of the defendant school districts in '' Davis v. County School Board of Prince Edward County'', which was consolidated later into ''Brown''. 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 fostered 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. In 1990, Powell swore in Virginia's first black governor,
Douglas Wilder Lawrence Douglas Wilder (born January 17, 1931) is an American lawyer and politician who served as the 66th Governor of Virginia from 1990 to 1994. He was the first African American to serve as governor of a U.S. state since the Reconstruction ...
. From 1961 to 1969, Powell served on the Virginia Board of Education; he was Chairman from 1968 to 1969.


Powell Memorandum, 1971

On August 23, 1971, prior to accepting Nixon's nomination to the Supreme Court, Powell was commissioned by his neighbor
Eugene B. Sydnor Jr. Eugene Beauharnais Sydnor Jr. (September 25, 1917 – September 9, 2003) was a Richmond department store owner, Chamber of Commerce executive, and politician. A member of the Byrd Organization, Sydnor served briefly in both houses of the Virgini ...
, a close friend and education director of the U.S. Chamber of Commerce, to write a confidential memorandum for the chamber entitled "Attack on the American Free Enterprise System," an anti-Communist and anti-
New Deal The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
blueprint for conservative business interests to retake America. Mayer, Jane (2016-01-19). ''Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right'' (Kindle Locations 1381-1382). Knopf Doubleday Publishing Group. Kindle Edition. It was based in part on Powell's reaction to the work of activist Ralph Nader, whose 1965 exposé on
General Motors The General Motors Company (GM) is an American Multinational corporation, multinational Automotive industry, automotive manufacturing company headquartered in Detroit, Michigan, United States. It is the largest automaker in the United States and ...
, '' Unsafe at Any Speed'', put a focus on the auto industry putting profit ahead of safety, which triggered the American consumer movement. Powell saw it as an undermining of the power of private business and a step toward socialism. His experiences as a corporate lawyer and a director on the board of Phillip Morris from 1964 until his appointment to the Supreme Court made him a champion of the tobacco industry who railed against the growing scientific evidence linking smoking to cancer deaths. He argued, unsuccessfully, that tobacco companies' First Amendment rights were being infringed when news organizations were not giving credence to the cancer denials of the industry. The memo called for corporate America to become more aggressive in molding society's thinking about business, government, politics and law in the US. It inspired wealthy heirs of earlier American industrialists, the Earhart Foundation (whose money came from an oil fortune), and the Smith Richardson Foundation (from the cough medicine dynasty) to use their private charitable foundations−which did not have to report their political activities−to join the
Carthage Foundation The Scaife Foundations refer collectively to three foundations in Pittsburgh, Pennsylvania. The three subdivisions are: the Allegheny Foundation, the Sarah Scaife Foundation, and the Scaife Family Foundation. A fourth foundation, the Carthage Fou ...
, founded by Richard Mellon Scaife in 1964. The Carthage Foundation pursued Powell's vision of a pro-business, anti-socialist, minimally government-regulated America based on what he thought America had been in the heyday of early American industrialism, before the
Great Depression The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
and the rise of Franklin D. Roosevelt's
New Deal The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
. The Powell Memorandum ultimately came to be a blueprint for the rise of the
American conservative movement Conservatism in the United States is a political and social philosophy based on a belief in limited government, individualism, traditionalism, republicanism, and limited federal governmental power in relation to U.S. states. Conservative ...
and the formation of a network of influential right-wing think tanks and lobbying organizations, such as the
Business Roundtable The Business Roundtable (BRT) is a nonprofit lobbyist association based in Washington, D.C. whose members are chief executive officers of major United States companies. Unlike the U.S. Chamber of Commerce, whose members are entire businesses, BRT ...
, The Heritage Foundation, the Cato Institute, Manhattan Institute for Policy Research and the American Legislative Exchange Council (ALEC), and inspired the U.S. Chamber of Commerce to become far more politically active.
CUNY , mottoeng = The education of free people is the hope of Mankind , budget = $3.6 billion , established = , type = Public university system , chancellor = Fél ...
professor David Harvey traces the rise of neoliberalism in the US to this memo. Historian Gary Gerstle refers to the memo as "a neoliberal call to arms." 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 Nader as the chief antagonist of American business. Powell urged conservatives to undertake a sustained media-outreach program, including funding neoliberal scholars, publishing books, papers, popular magazines, and scholarly journals, and influencing public opinion. This memo foreshadowed a number of Powell's court opinions, especially ''
First National Bank of Boston v. Bellotti ''First National Bank of Boston v. Bellotti'', 435 U.S. 765 (1978), is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amen ...
'', which shifted the direction of First Amendment law by declaring that corporate financial influence of elections by 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 ''Citizens United v. Federal Election Commission'', 558 U.S. 310 (2010), was a landmark decision of the Supreme Court of the United States regarding campaign finance laws and free speech under the First Amendment to the U.S. Constitution. It wa ...
'' relied on the same arguments raised in ''Bellotti''. Although written confidentially for Sydnor 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 alleged that Powell was trying to undermine the democratic system; however, in terms of business's view of itself in relation to government and public interest groups, the memo could be alternatively read to simply convey conventional thinking among businessmen at the time. The explicit goal of the memo was not to destroy democracy, though its emphasis on political institution-building as a concentration of big business power, particularly updating the Chamber's efforts to influence federal policy, has had that effect. Here, it was a major force in motivating the Chamber and other groups to modernize their efforts to lobby the federal government. Following the memo's directives, conservative foundations greatly increased, pouring money into
think-tanks A think tank, or policy institute, is a research institute that performs research and advocacy concerning topics such as social policy, political strategy, economics, military, technology, and culture. Most think tanks are non-governmental org ...
. This rise of conservative philanthropy led to the conservative intellectual movement and its increasing influence over mainstream political discourse, starting in the 1970s and 1980s, and due chiefly to the works of the American Enterprise Institute and the Heritage Foundation.


Supreme Court tenure, 1972–1987

In 1969, 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 John Newton Mitchell (September 15, 1913 – November 9, 1988) was the 67th Attorney General of the United States under President Richard Nixon and chairman of Nixon's 1968 and 1972 presidential campaigns. Prior to that, he had been a municipal ...
, 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, like now, heard very few corporate law cases. Powell feared that 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. Powell took over the seat of
Hugo Black Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from Alabama from 1927 to 1937 and as an associate justice of the U.S. Supreme Court from 1937 to 1971. A ...
after being confirmed by the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
89-1 on December 7, 1971 (the lone "nay" came from
Oklahoma Oklahoma (; Choctaw language, Choctaw: ; chr, ᎣᎧᎳᎰᎹ, ''Okalahoma'' ) is a U.S. state, state in the South Central United States, South Central region of the United States, bordered by Texas on the south and west, Kansas on the nor ...
Democrat
Fred R. Harris Fred Roy Harris (born November 13, 1930) is an American academic, author, and former politician who served as a Democratic member of the United States Senate from Oklahoma. Born in Walters, Oklahoma, Harris was elected to the Oklahoma Senate ...
). 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." Lewis Powell served from January 7, 1972 until June 26, 1987, when he retired from the Court. Powell was among the 7–2 majority who legalized abortion in the United States in ''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
'' (1973). Powell's pro-choice stance on abortion stemmed from an incident during his tenure at his Richmond law firm, when the girlfriend of one of Powell's office staff bled to death from an illegal self-induced abortion. Powell, who dissented in the case of ''
Furman v. Georgia ''Furman v. Georgia'', 408 U.S. 238 (1972), was a landmark criminal case in which the United States Supreme Court invalidated all then existing legal constructions for the death penalty in the United States. It was 5–4 decision, with each mem ...
'' (1972), striking down capital punishment statutes, was a key mover behind the Court's compromise opinion in ''
Gregg v. Georgia ''Gregg v. Georgia'', ''Proffitt v. Florida'', ''Jurek v. Texas'', ''Woodson v. North Carolina'', and ''Roberts v. Louisiana'', 428 U.S. 153 (1976), is a landmark decision of the U.S. Supreme Court. It reaffirmed the Court's acceptance of the use ...
'' (1976), which allowed the return of capital punishment but only with procedural safeguards. In ''
Coker v. Georgia ''Coker v. Georgia'', 433 U.S. 584 (1977), held that the death penalty for rape of an adult woman was grossly disproportionate and excessive punishment, and therefore unconstitutional under the Eighth Amendment to the U.S. Constitution. A few ...
'' (1977), 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 Georgia is a state in the Southeastern region of the United States, bordered to the north by Tennessee and North Carolina; to the northeast by South Carolina; to the southeast by the Atlantic Ocean; to the south by Florida; and to the west by ...
sentenced the rapist to death. Justice Powell, acknowledging that the woman had been raped, expressed the view that "the victim id notsustain serious or lasting injury" and voted to set the death penalty aside. In that same case, Powell also wrote to rebuke the plurality's statement that "for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair,". instead stating that " me victims are so grievously injured physically or psychologically that life is beyond repair." 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 John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
, joined by three other justices, who would have struck down the affirmative action program at issue in the case under the
Civil Rights Act of 1964 The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...
. Powell's opinion striking down the law urged "
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
" to be applied to affirmative action programs but hinted that some affirmative action programs might pass Constitutional muster. 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 A constructive trust is an equitable remedy imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding a legal property right which they should not possess due to unjust enri ...
upon former CIA agent
Frank Snepp Frank Warren Snepp, III (born May 3, 1943) is a journalist and former chief analyst of North Vietnamese strategy for the Central Intelligence Agency (CIA) in Saigon during the Vietnam War. For five out of his eight years as a CIA officer, he worke ...
and its requirement for preclearance of 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 J. Brennan Jr. William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the seventh-longest serving justice ...
(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 John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
, who relied upon it in composing his dissent. From his days in counterintelligence 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 ''First National Bank of Boston v. Bellotti'', 435 U.S. 765 (1978), is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amen ...
'' (1978), which overturned a Massachusetts law restricting corporate contributions to referendum campaigns not directly related to their business. Powell joined the 5–4 majority opinion in ''
Plyler v. Doe ''Plyler v. Doe'', 457 U.S. 202 (1982), was a case in which the Supreme Court of the United States struck down both a state statute denying funding for education of undocumented immigrant children in the United States and an independent school distr ...
'', holding that a Texas law forbidding undocumented immigrant children from public education was unconstitutional. Powell had a fairly conservative record in deciding cases, but joined the Court's four liberal Justices to declare the law unconstitutional. Powell was the swing vote in '' Bowers v. Hardwick'', , in which the Court upheld Georgia's sodomy laws. He was reportedly conflicted over how to vote. A conservative clerk,
Michael W. Mosman Michael Wise Mosman (born December 23, 1956) is a Senior United States district judge of the United States District Court for the District of Oregon. He served as Chief Judge for the U.S. District Court for the District of Oregon from February 1 ...
, 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. However, he, 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 ''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as so ...
'', . 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. Scholars would later conclude that Powell unknowingly hired more gay clerks than any other Justice.
Paul M. Smith Paul March Smith (born 1955) is an American Lawyer, attorney who has argued many important cases, most notably ''Lawrence v. Texas'' and has argued 21 cases before the Supreme Court of the United States. In January 2017, he joined the facult ...
, the gay attorney who argued in favor of overturning ''Bowers'' is a former clerk for Justice Powell. Powell also expressed post-retirement regret over his majority opinion in ''
McCleskey v. Kemp ''McCleskey v. Kemp'', 481 U.S. 279 (1987), is a United States Supreme Court case, in which the death penalty sentencing of Warren McCleskey for armed robbery and murder was upheld. The Court said the "racially disproportionate impact" in the Geor ...
'' (1987), where he voted to uphold the death penalty against a study that demonstrated that, except as punishment for the most violent of crimes, murderers sentenced for killing white victims were up to forty times more likely to receive the death penalty than people who killed black victims. In an interview with his biographer, he stated that he would abolish the death penalty altogether.


Retirement and death, 1987–1998

Powell was nearly 80 years old when he retired from his position as Supreme Court justice in June 1987. 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 Douglas Howard Ginsburg (born May 25, 1946) is an American jurist and academic who serves as a senior judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed to that court in October 1986 by President Ro ...
, withdrew his name from consideration after admitting to having smoked
marijuana Cannabis, also known as marijuana among other names, is a psychoactive drug from the cannabis plant. Native to Central or South Asia, the cannabis plant has been used as a drug for both recreational and entheogenic purposes and in various tra ...
both as a college undergraduate and with his students while a law professor. Following his retirement from the high court, he sat regularly on various United States Courts of Appeals around the country. In 1990,
Douglas Wilder Lawrence Douglas Wilder (born January 17, 1931) is an American lawyer and politician who served as the 66th Governor of Virginia from 1990 to 1994. He was the first African American to serve as governor of a U.S. state since the Reconstruction ...
asked Powell to swear him in as governor of Virginia, and the first elected African-American governor in the United States. Powell died at his home in the
Windsor Farms Windsor Farms is a 20th-century neighborhood in Richmond, Virginia, of primarily Colonial Revival design. Designed in 1926, Windsor Farms is one of Richmond's first planned neighborhoods. It was designed to look like an English village, with curv ...
area of
Richmond, Virginia (Thus do we reach the stars) , image_map = , mapsize = 250 px , map_caption = Location within Virginia , pushpin_map = Virginia#USA , pushpin_label = Richmond , pushpin_m ...
, 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.


Legacy

In her 2002 book, ''The Majesty of the Law'', Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
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 his alma mater, 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 James Harvie Wilkinson III (born September 29, 1944) is an American jurist who serves as a United States circuit judge on the United States Court of Appeals for the Fourth Circuit. His name has been raised at several junctures in the past as a pos ...
, a judge on the Fourth Circuit, and former
law clerk A law clerk or a judicial clerk is a person, generally someone who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant ...
for Justice Powell, 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 The Lewis F. Powell Jr. United States Courthouse, also known as the U.S. Post Office and Customhouse, is a historic custom house, post office and courthouse located in Richmond, Virginia. Originally constructed in 1858, it was for decades a courtho ...
.


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 (Seat 1) *
List of United States Supreme Court justices by time in office A total of 116 people have served on the Supreme Court of the United States, the highest judicial body in the United States, since it was established in 1789. Supreme Court justices have life tenure, and so they serve until they die, resign, retir ...
* United States Supreme Court cases during the Burger Court * United States Supreme Court cases during the Rehnquist Court


References


Bibliography

* *


External links

*
FBI file on Lewis F. Powell, Jr.
at vault.fbi.gov * {{DEFAULTSORT:Powell, Lewis Jr. 1907 births 1998 deaths 20th-century American judges United States Army Air Forces personnel of World War II American Presbyterians Deaths from pneumonia in Virginia Harvard Law School alumni Lawyers from Richmond, Virginia Military personnel from Virginia People from Suffolk, Virginia Presidents of the American Bar Association Recipients of the Croix de Guerre 1939–1945 (France) Recipients of the Legion of Merit School board members in Virginia United States Army Air Forces officers United States federal judges appointed by Richard Nixon Justices of the Supreme Court of the United States Virginia Democrats Virginia lawyers Washington and Lee University School of Law alumni