Lewis F. Powell Jr. | |
|---|---|
 Official portrait, 1976 | |
| 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 |
| Chairman of Virginia State Board of Education | |
| In office 1968–1969 | |
| 88th President ofAmerican Bar Association | |
| In office 1964–1965 | |
| Preceded by | Walter Early Craig |
| Succeeded by | Edward W. Kuhn |
| Chairman of Richmond School Board | |
| In office 1952–1961 | |
| Personal details | |
| Born | Lewis Franklin Powell Jr. (1907-09-19)September 19, 1907 Suffolk, Virginia, U.S. |
| Died | August 25, 1998(1998-08-25) (aged 90) Richmond, Virginia, U.S. |
| Resting place | Hollywood Cemetery |
| Political party | Democratic[2] |
| Spouse | |
| Children | 4 |
| Education | |
| Military service | |
| Allegiance |  United States |
| Branch/service |  United States Army |
| Years of service | 1942–1945 |
| Rank |  Colonel |
| Unit |  319th Bombardment Group United States Army Air Forces United States Department of War United States Strategic Air Forces in Europe |
| Battles/wars | |
| Awards |  Legion of Merit Bronze Star Croix de Guerre |
Lewis F. Powell Jr. delivers the opinion of the Court inChiarella v. United States Recorded March 18, 1980 | |
Lewis Franklin Powell Jr. (September 19, 1907 – August 25, 1998) was an American lawyer and jurist who served as anassociate justice of the Supreme Court of the United States from 1972 to 1987.
Born inSuffolk, Virginia, he graduated from both theWashington and Lee University School of Law andHarvard Law School and served in theUnited States Army Air Forces duringWorld War II. He worked forHunton & Williams, a large law firm inRichmond, Virginia, focusing oncorporate law and representing clients such as theTobacco Institute. His1971 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 asThe Heritage Foundation and theAmerican Legislative Exchange Council. In 1971, PresidentRichard Nixon appointed Powell to succeed the late Associate JusticeHugo Black. He retired from the Court during the administration of PresidentRonald Reagan, and was eventually succeeded byAnthony Kennedy.
His tenure largely overlapped with that of Chief JusticeWarren Burger, and Powell was often a keyswing vote on theBurger Court. His majority opinions includeUnited States v. Brignoni-Ponce (1975),Gregg v. Georgia (1976),First National Bank of Boston v. Bellotti (1978),Solem v. Helm (1983), andMcCleskey v. Kemp (1987), and he wrote an influential opinion inRegents of the University of California v. Bakke (1978). He notably joined the majority in controversial cases such asUnited States v. United States District Court (1972),Roe v. Wade (1973),Milliken v. Bradley (1974),Harris v. McRae (1980),Plyler v. Doe (1982), andBowers v. Hardwick (1986).
Powell was born in Suffolk, Virginia in 1907, the son of Mary Lewis (Gwathmey) and Louis Franklin Powell.[3] Powell set out to attendWashington 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 aB.A.magna cum laude andPhi Beta Kappa. He also was named recipient of theAlgernon Sydney Sullivan Award for "generous service to others".
Powell then attendedWashington and Lee University School of Law and in 1931 graduatedvaledictorian. He received aMaster of Laws degree from Harvard Law School in 1932,[4] wrote a LL.M. thesis entitled "Relation between the Virginia Court of Appeals and the State Corporation Commission",[5] and was one of two U.S. Supreme Court justices to have earned an LL.M. degree.[6]
He was elected president of the student body as an undergraduate with the help ofMosby Perrow Jr., and the two served together on the Virginia State Board of Education in the 1960s.[7] Powell was a member ofPhi Kappa Sigma fraternity and theSigma Society.[8] At a leadership conference, he metEdward R. Murrow, and they became close friends.[9]
In 1936, he married Josephine Pierce Rucker with whom he had three daughters and one son. She died in 1996.
During World War II, he first tried to join theUnited States Navy but was rejected because of poor eyesight, so he joined theUS Army Air Forces as anIntelligence officer. After receiving his commission as afirst lieutenant in 1942, he completed training at bases nearMiami, Florida andHarrisburg, Pennsylvania. He was assigned to the319th Bombardment Group, which moved to England later that year. He served in North Africa duringOperation Torch and was later assigned to the Headquarters of the Northwest African Air Forces. There, Powell served in Sicily during theAllied invasion of Sicily.[citation needed]
In August 1943, he was assigned to the Intelligence staff of theArmy Air Forces inWashington, 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 theDepartment of War and then the Intelligence staff ofUnited States Strategic Air Forces in Europe. While there Colonel Powell wrote in the aftermath of the 13–15 February 1945Bombing 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."[10][11]
Powell was assigned to theUltra project, as one of the officers designated to monitor the use of interceptedAxis communications. He worked inEngland and in theMediterranean Theater and ensured that the use of Ultra information was in compliance with thelaws of war, and that the use of such information did not reveal the source, which would have alerted that the code had been broken.[citation needed]
Powell advanced through the ranks tocolonel, and received theLegion of Merit,Bronze Star Medal, and FrenchCroix de Guerre with bronze palm. He was discharged in October 1945.[12]
In 1941, Powell served as Chairman of theAmerican Bar Association's Young Lawyers Division.[13]
Powell was apartner for more than a quarter of a century at Hunton, Williams, Gay, Powell and Gibson, a largewhite shoe Virginia law firm, with its primary office inRichmond, now known asHunton Andrews Kurth. Powell practiced primarily in the areas ofcorporate law, especially in the fields ofbusiness acquisitions,securities regulation,bankruptcy,real estate[14] 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."[15]
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'sLegal Services Corporation. Powell was also involved in the development ofColonial Williamsburg, where he was both a trustee and general counsel.From 1964 until his court appointment in 1971 he was a board member ofPhilip Morrisand acted as a contact point for the tobacco industry withVirginia Commonwealth University. Through his law firm, Powell represented theTobacco Institute and various tobacco companies in numerous cases.[citation needed]
Powell played an important role in local community affairs. From 1951 to 1961, he served on theRichmond School Board 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 theSupreme Court's decision inBrown v. Board of Education (1954), which desegregated public schools. Powell's law firm, although not Powell himself, represented one of the defendant school districts inDavis v. County School Board of Prince Edward County, which was consolidated later intoBrown.
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 he fostered close working relationships with many black leaders, such ascivil rights lawyerOliver 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.
From 1961 to 1969, Powell served on theVirginia Board of Education; he was chairman from 1968 to 1969.[16]
On August 23, 1971, prior to accepting Nixon's nomination to the Supreme Court, Powell was commissioned by his neighborEugene B. Sydnor Jr., a close friend and education director of theU.S. Chamber of Commerce, to write a confidential memorandum for the chamber entitled "Attack on the American Free Enterprise System," ananti-Communist and anti-New Deal blueprint for conservative business interests to retake America.[17][18] It was based in part on Powell's reaction to the work of activistRalph Nader, whose 1965 exposé onGeneral Motors,Unsafe at Any Speed, put a focus on the auto industry putting profit ahead of safety, which triggered theAmerican consumer movement. Powell saw it as an undermining of the power of private business and a step towardsocialism.[17] His experiences as acorporate lawyer and a director on the board ofPhillip Morris from 1964 until his appointment to the Supreme Court made him a champion of thetobacco industry who railed against the growing scientific evidence linking smoking to cancer deaths.[17] 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.[17]
The memo called for corporate America to become more aggressive in molding society's thinking about business, government, politics and law in the U.S. It inspired wealthy heirs of earlier American industrialists, theEarhart Foundation (whose money came from an oil fortune), and theSmith Richardson Foundation (from the cough medicine dynasty)[17] to use their private charitable foundations, which did not have to report their political activities, to join theCarthage Foundation, founded byRichard Mellon Scaife in 1964.[17] 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 theGreat Depression and the rise ofFranklin D. Roosevelt'sNew Deal.
The Powell Memorandum ultimately came to be a blueprint for the rise of theAmerican conservative movement and the formation of a network of influential right-wingthink tanks and lobbying organizations, such as theBusiness Roundtable,The Heritage Foundation, theCato Institute,Manhattan Institute for Policy Research and theAmerican Legislative Exchange Council (ALEC), and inspired the U.S. Chamber of Commerce to become far more politically active.[19][20][21]CUNY professorDavid Harvey traces the rise ofneoliberalism in the US to this memo.[22][23] HistorianGary Gerstle refers to the memo as "a neoliberal call to arms."[19] Political scientist Aaron Good describes it as an "inverted totalitarian manifesto" designed to identify threats to the established economic order following the democratic upsurge of the 1960s.[24]
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.[25][26]
This memo foreshadowed a number of Powell's court opinions, especiallyFirst National Bank of Boston v. Bellotti, 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 inCitizens United v. Federal Election Commission relied on the same arguments raised inBellotti.
Although written confidentially for Sydnor at the Chamber of Commerce, it was discovered byJack Anderson, a columnist withThe Washington Post, 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 reportedly had that effect.[27] 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, conservativefoundations greatly increased, pouring money intothink-tanks. This rise of conservative lobbying 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 theAmerican Enterprise Institute and the Heritage Foundation.[28]
During the2024 presidential election season, the Powell memo was called out as the basis for the Heritage Foundation's audacious and wide-reachingProject 2025 agenda for their hoped-for next Republican administration.[29][30][31]
In 1969, Nixon asked him to join the Supreme Court following the resignation ofAbe Fortas, but Powell turned him down, and JudgeHarry Blackmun of theEighth Circuit Court of Appeals was appointed instead (following Senate rejections of JudgesClement F. Haynsworth andG. Harrold Carswell). 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.[32] 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.[citation needed] 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, as 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 andWilliam Rehnquist to the Court on the same day, October 21, 1971.[33] Powell's nomination generated no controversy and he took over the seat of Hugo Black after being confirmed by theSenate 89–1 on December 6, 1971 (the lone "nay" came fromOklahoma DemocratFred R. Harris).[34] 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."[35]
Lewis Powell served from January 7, 1972, until June 26, 1987, when he retired from the Court.[36]
Powell voted with the 7–2 majority who legalizedabortion in the United States inRoe v. Wade (1973). Powell'spro-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 illegalself-induced abortion.[37]
Powell, who dissented in the case ofFurman v. Georgia (1972), striking downcapital punishment statutes, was a key mover behind the Court's compromise opinion inGregg v. Georgia (1976), which allowed the return of capital punishment but only with strengthened procedural safeguards. InCoker v. Georgia (1977), in which the Court held that the death penalty was an unconstitutionally disproportionate punishment for the rape of an adult woman, a convicted murderer escaped from prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. TheState 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"[38] 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,"[39] instead stating that "[s]ome victims are so grievously injured physically or psychologically that life is beyond repair."[39]
He joined the majority opinion inMilliken v. Bradley (1974), which struck down aschool busing plan which was designed to racially integrate 53 Detroit area public school districts across district lines. They had inadvertently become segregated due towhite flight to the suburbs. The majority ruled against the busing because the schools hadn't been segregated by law.
His plurality opinion inRegents of the University of California v. Bakke (1978), joined by no other justice in full, represented a compromise between the opinions of JusticeWilliam J. Brennan, who, joined by three other progressive justices, would have upheld affirmative action programs under a lenient judicial test, and the opinion ofJohn Paul Stevens, joined by three other justices, who would have struck down the university's use of racial quotas at issue in the case under theCivil Rights Act of 1964. Powell's opinion striking down the law urged "strict scrutiny" to be applied to affirmative action programs but hinted that some affirmative action programs might pass Constitutional muster.
Powell wrote the majority opinion inFirst National Bank of Boston v. Bellotti (1978), which overturned a Massachusetts law restricting corporate contributions to referendum campaigns not directly related to their business.[40]
In spite of supporting legal abortion, Powell ruled with the majority inHarris v. McRae (1980), which held that states participating inMedicaid are not required to fund medically necessary abortions for which federal reimbursement was not available after theHyde Amendment restricted the use of federal funds for abortion.[41] The Court also held that the funding restrictions of the Hyde Amendment did not violate theFifth Amendment or theEstablishment Clause of theFirst Amendment.
In the controversial case ofSnepp v. U.S. (1980), the Court issued aper curiam upholding the lower court's imposition of aconstructive trust upon former CIA agentFrank Snepp 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 JusticesThurgood Marshall (who had already died) and William J. Brennan Jr. (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.[42] 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'sUnited States v. Nixon.
In 1982, Powell joined the 5–4 majority opinion inPlyler v. Doe holding that a Texas law forbidding illegal immigrant children from public education was unconstitutional.[43] Powell had a mixed record in deciding cases, but joined the Court's four liberal Justices to declare the law unconstitutional.
Powell was the deciding vote inBowers v. Hardwick,478 U.S. 186 (1986), in which the Court upheld Georgia'ssodomy 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. However, he, in aconcurring opinion, expressed concern at the length of the prison terms prescribed by the law, criticizing them as excessive.[44] The Court, 17 years later, expressly overruledBowers inLawrence 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 rulings.[45] Scholars would later conclude that Powell unknowingly hired more gay clerks than any other Justice.[46]Paul M. Smith, the gay attorney who argued in favor of overturningBowers, is a former clerk for Justice Powell.[47]
Powell also expressed post-retirement regret over his majority opinion inMcCleskey 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, 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 no longer supported the death penalty.[48]
Powell was nearly 80 years old when he retired from his position as Supreme Court justice in June 1987.[1] His career on the bench was described byGerald Gunther, a professor of constitutional law atStanford 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."[49]
He was succeeded byAnthony Kennedy. Kennedy was the third nominee for his position. The first,Robert Bork, wasrejected by theUnited States Senate after a bitter confirmation fight. The second,Douglas H. Ginsburg, withdrew his name from consideration after admitting to having smokedmarijuana both as a college undergraduate and with his students while a law professor.
Following his retirement from the high court, he sat regularly on variousUnited States Courts of Appeals around the country.
In 1990,Douglas Wilder asked Powell to swear him in as governor of Virginia, and the first elected African-American governor in the United States.[50]
Powell died at his home in theWindsor Farms area of Richmond, Virginia, ofpneumonia, at 4:30 in the morning of August 25, 1998, at the age of 90. He is buried in Richmond'sHollywood Cemetery.[51]
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In her 2002 book,The Majesty of the Law, JusticeSandra 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 hisalma mater, Washington and Lee University School of Law, where they are open for research, subject to certain restrictions. A wing atSydney Lewis Hall, home of W&L Law, which houses his papers, is named for him.
J. Harvie Wilkinson, a judge on theFourth Circuit, and formerlaw clerk for Justice Powell, wrote a book titledServing Justice: A Supreme Court Clerk's View describing the experience.
In 1993, PresidentBill Clinton signed into law an act of Congress renaming the Federal courthouse at Richmond, Virginia, in his honor, theLewis F. Powell Jr. United States Courthouse.
lewis powell virginia board of education.
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