WASHINGTON - Any time the Supreme Court and the nation lose a justice who has stood above the other jurists who have served there, monuments to that influence are lined up to be worshiped, like the solid and towering Druid relics at Stonehenge.
Seldom does an observer stop to shed a quiet tear over a loss of civility and humility. Those qualities were two of the outstanding monuments left by Justice Lewis F. Powell Jr., who died last week at age 90, passing away quietly in his sleep at home in Richmond.
Powell left on the record of American law a mound of judicial
statecraft, some of it of lasting import, much of it speaking with measured reason, a good deal of it with human compassion. Modestly, as was typical of his self-assessments, Powell said upon his retirement in 1987, "I carried my full load on the court during the term now ending." He could have made far greater claims about his service.
Power he held, sometimes in abundance. But almost no one who served with him or observed him on the bench associates Lewis Powell with power - as one did with the late Justice William J. Brennan Jr., or with the court's early giant, Chief Justice John Marshall.
Powell is likely to be remembered as one of the very few - if not the last of - the court's noblest spirits. Therein lay his power as a judge among nine justices.
Two years after his retirement from the court, the justices who had so recently relied upon Powell to show how much better the court works when it is collegial were at each other's throats, loosing personal epithets, some of almost unmentionable pettiness.
A letter found among the justice's papers by his biographer, John C. Jeffries Jr., had been written that year to Powell's son, Lewis III. "I am rather glad I was not on that court," Powell wrote. Another justice, quoted anonymously by Jeffries, remarked that, after Powell retired, there was "less civility than formerly."
On his death last week, seven of the current justices commented about his life, and each stressed the human qualities. Said Justice John Paul Stevens: "Lewis Powell was a true gentleman, a loyal and exceptionally wise man." Justice Ruth Bader Ginsburg remarked, "He lived as the prophet Micah counseled, doing justice, loving goodness and walking modestly with his God." He was, Justice Antonin Scalia remembered, "old-fashioned" in the best sense.
In the paradox that is Justice Powell's record, it was old-fashioned modesty - combined with the professional acumen one of the nation's leading private attorneys and the civilizing instincts he learned as a Virginia gentleman and public citizen - that made him one of history's most influential justices of his time. Those qualities also made him a justice whose solitary vote could control outcomes in even the most divisive cases because he might have gone either way.
He was not unsure of himself. In a 1989 interview with The Sun, he spoke gently of his resentment at the suggestion - he did not say who had made it - that he waited to cast his vote until he saw how his eight colleagues would divide, then chose a side.
Deeply seasoned in the law, he usually knew where he was prepared to stand. Indeed, he said he thought it was his duty to have some notion about how his vote was likely to go. And, he once told an interviewer, "I don't wake up in the middle of the night wishing I'd voted differently."
Open to the arguments
Still, over time, he could - and would - change his mind, because Lewis Powell was not sure that he always was right or that he would remain forever right as times, conditions and perceptions changed.
The conventional wisdom around the courthouse is that, once a justice digs into a position, not even the best of advocates can coax that justice to change. Justices, it is said, do not confess error readily.
But Powell prided himself on remaining open to the arguments that lawyers made before the court, even after he had immersed himself in their written briefs and had come to tentative conclusions about how to vote. The idea that the court might do away with oral arguments was, to him, a heresy. "I would never give up oral argument," he commented.
If a lawyer hoped to win a case that was likely to bring out the divisions within the court, that lawyer would know that he had to begin working toward five votes by trying first to capture Powell's. And though many of Powell's voting habits were consistent and sometimes predictable, his vote seemed to be available for capture.
Those who count his most important decisions as his monuments might overlook lesser precedents, often as closely divided as the big ones would be but decided at a level of stark human simplicity, with Powell helping his colleagues see the homely, real-world consequences.