Retired Justice Powell dies at 90 His swing vote saved abortion rights, upheld affirmative action

August 26, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Retired Justice Lewis F. Powell Jr., a dominant figure on the modern Supreme Court whose voice remained uniquely calm amid even the fiercest constitutional tempests, died at his home in Richmond yesterday. He was 90, less than a month short of 91.

A reluctant justice who joining the court after twice refusing presidential appointments to the bench, Mr. Powell, over a tenure of more than 15 years, held what was commonly considered the single most decisive vote on a court regularly and often angrily split 5-4.

His legacy includes critical tie-breaking votes that favored affirmative action, saved abortion rights, insulated presidents from legal challenges, and denied constitutional protection for homosexual acts.

A leader of the American bar but never a judge before, Mr. Powell quietly helped steer a fractious court toward decisions that "set the course of American constitutional law for the better part of a generation," in the assessment of his biographer, John C. Jeffries Jr., a University of Virginia law professor and former Powell law clerk.

President Clinton praised Justice Powell for opinions that were "a model of balance and judiciousness," and for following the law "without an ideological agenda and regardless of his personal views."

Chief Justice William H. Rehnquist said Justice Powell "was the very embodiment of judicial temperament: receptive to the ideas of his colleagues, fair to the parties to the case, but ultimately relying on his own seasoned judgment."

Justice Anthony M. Kennedy, who succeeded Mr. Powell, noted that the justice had gone to the court "with a towering reputation as a marvelous lawyer" and quickly showed that "the lawyer's skill soon becomes the judge's excellence."

Justice Antonin Scalia, not always on Mr. Powell's side in Supreme Court voting, praised him as "a Virginia gentleman," with "countless qualities of social grace and civic virtue."

So influential had Mr. Powell become as a justice that his retirement in 1987 put the court's future direction at stake. President Ronald Reagan and a Democratic Senate butted heads over filling the vacancy, and a judge far more conservative than Mr. Powell -- Robert H. Bork -- was cast aside as a replacement.

Political mire

In the aftermath of that episode, Supreme Court appointments became more contentious, drawing the court into a deepening political mire that Mr. Powell privately found offensive, an affront to an institution he never mentioned without reverence.

Born in Suffolk, Va., and a descendant of the first settlers at Jamestown, Mr. Powell became a lawyer after getting two law degrees at Washington and Lee University, followed by further study at Harvard Law School.

As the head of the American Bar Association, he pioneered the idea that even the most high-priced lawyers should give free time to handle the legal woes of the poor.

As a school board member in Virginia, the reserved Southerner helped dampen the raging fires of racial hostility in his native state when the Supreme Court ordered public schools desegregated.

Justice Powell took his seat on the court at age 64, believing he was too old for the job. He even tried to back out of his appointment in 1971, but was persuaded to accept by President Richard M. Nixon, who was filling the vacancy left by the late Alabamian, Justice Hugo L. Black Jr.

Mr. Powell often noted, wryly, that Mr. Nixon had chosen him for the court mainly because he, like Black, was a Southerner at a time when the president was trying to build Republican political fortunes in Dixie.

When Justice Powell retired, Nixon wrote in a private note that "when you were reluctant to accept appointment to the Supreme Court because of your age, I observed that 10 years of Lewis Powell on the court was worth 20 years for anyone else. I was right."

When he joined the court, Mr. Powell recalled later in an interview, "I didn't have a long-term philosophy about any aspect of the court's work. I decided the cases one at a time."

He added: "I had no ambition to be a judge," and: "I did not want to leave Richmond."

The justice's centrist philosophy and his influence on the court are most closely matched today by Justice Sandra Day O'Connor, who said yesterday: "Justice Powell was one of the finest people I have ever known. He served his nation with enormous grace and distinction."

She and he were early allies, after she became the court's first woman justice in 1981. His position then as the holder of the key "swing" vote is now hers.

Affirmative action in doubt

With Justice O'Connor, though, the current court's center has moved further to the right. And the retired justice lived to see his most important single contribution -- his 1978 opinion in the so-called Bakke case, upholding affirmative action for the first time -- facing a doubtful future in a new era of constitutional conservatism.

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