August 30, 1998|By Lyle Denniston
He was perplexed, for example, that an Ohio city would seek to put a grandmother in jail because she had taken in a 10-year-old grandchild to live with her, in violation of an ordinance defining a family household. He was troubled, too, that Texas would deny public schooling to children because their parents had come into the country as illegal aliens.
Even on some of the major cases, Powell's moderate centrist views, putting him in a position to be the tie-breaking justice, were shaped more by human perception than by philosophy or ideology. He could not make himself understand why a state should think a law should control whether a woman has an abortion. Nor could he accept that a college's attempt to bring in minority students to promote diversity would threaten racial harmony. Or that a white teacher with seniority should lose her job to a black teacher with less service for no reason other than race.
His most controversial vote in a 5-4 case - forming a majority to deny homosexuals constitutional privacy for their consensual sex lives - was borne more of a perception that a Georgia anti-sodomy law was silly and would not be enforced than of the view (held by the other four justices in the majority) that homosexuality was socially and morally reprehensible.
Years later, when he came to understand what that vote had meant to the lives of gay people, he repudiated it.
It is not at all clear that Powell's attitudes, his methods or his decisional monuments abide at the court, or that they will last through history.
Among the current justices, David H. Souter most nearly approximates Powell's personal modesty and diffidence, but Souter has a far more cerebral, sometimes coldly rational legal approach. Justice Stephen G. Breyer can be Powellesque in his manner but is distinctly unlike Powell in the intricate web of reasoning he weaves, on the bench and in his opinions.
On most issues, Justice Sandra Day O'Connor tends to vote as Powell did and probably would, although she sees issues as distinctly more philosophical and ideological than he did. For example, her views against affirmative action, adopted in the first instance under Powell's coaching, have hardened more than his had. She has inherited Powell's standing as the justice whose vote is most avidly sought by lawyers.
Justice Anthony M. Kennedy - who succeeded to Powell's seat - is like Powell in his human perceptions of major issues before the court. That approach probably accounted for Kennedy's abandonment of the idea that the court should do away with abortion rights altogether, and for his personal abhorrence at the idea that a state would try to take away all the rights of gays.
But Kennedy is at times more combative than Powell was and at other times seems to agonize more over hard decisions.
Vulnerable precedents
The major precedents identified with Powell seem, in several instances, quite vulnerable. His approach to affirmative action in college admissions - in the Bakke decision from 1978 - has been repudiated by a federal appeals court in the Hopwood case, and by the people of California in Proposition 209. His successors on the Supreme Court have refused to stop the trend.
Powell's moderate views sometimes favoring, sometimes disfavoring the death penalty have all but given way to a firm majority view that the technical barriers to executions must be significantly lowered.
His conclusion that presidents should not be bothered by the nuisance of civil damage lawsuits has been, in essence if not in pure legal principle, cast aside by a court that was willing to allow Paula Corbin Jones to go ahead with her sexual misconduct case against President Clinton.
His studied skepticism about government-religion dealings - a modern shadow of fellow Virginian Thomas Jefferson's "wall of separation" between the two - is no longer shared by a court majority, and the wall is definitely crumbling.
On the other hand, abortion rights, which Powell fervently supported, remain secure if somewhat narrowed in scope. And the grandmother from East Cleveland, Ohio, and others who cherish their family privacy when the government might intrude, appear to be safe, even without Powell's vote and nurturing support.
There was some irony, then, in the fact that the single vote cast in the Senate against his nomination to the court in 1971 was by a liberal senator who thought Powell would not be sensitive to "little people."
His humane instincts turned many "little people," facing the unsettling winds of the law, into Lewis Powell's sturdy Stonehenge pillars.
Lyle Denniston has covered the Supreme Court for 40 years. He has reported on the court and legal issues for The Sun since
1981. He previously covered the Supreme Court for the Washington Star and the Wall Street Journal.
Pub Date: 8/30/98
