Former Supreme Court Justice Lewis Powell, who played a pivotal role in important decisions on capital punishment, abortion, and affirmative action, died today in Richmond, VA. He was 90 years old. Jim Lehrer and guests discuss his legacy.
JIM LEHRER: Finally tonight former Supreme Court Justice Lewis Powell, who died this morning in Richmond, Virginia, at the age of 90. He was 64 in 1971, when President Nixon nominated him for the court. He retired 15 years later, after playing a pivotal role in important decisions on capital punishment, abortion, and affirmative action, among others. In 1989, two years into his retirement, I interviewed him in his Supreme Court office, and I asked him what a justice did with his political and ideological beliefs when it came time to make a decision.
LEWIS POWELL, Supreme Court Justice (Retired) [January 1989]: Well, I think every lawyer holds the Supreme Court in the highest respect and regard. When you take the oath of office to sit on this court, I think there's a very strong tendency of justices to try to put political inclinations behind them. We cannot always do it, of course, but basically when you put that black robe on and take the oath, I think your entire viewpoint begins to change.
JIM LEHRER: In what way? Explain that, how that changes.
LEWIS POWELL: I think you realize the responsibility that this court has and that the injection of politics in their decision would be disastrous. The people of the United States, with exception of a few periods in our history, have supported this court. I think they have done so basically because the court has remained out of politics and also because people understand that the United States Supreme Court has a responsibility for and I think does protect the liberties of the people.
JIM LEHRER: One of the major decisions you wrote while you were on the court was the Baake case, an affirmative action case. Explain why affirmative action is necessary in terms of protecting minority rights, at least from your perspective.
LEWIS POWELL: I held—I wrote—the court finally held, of course, that in view of the situation in our country, there was an important interest, indeed, a compelling interest in the university, which was before us, to have diversity in the student body. If you had an all white or an all black or even an all male or an all female university, that is, a university that wouldn't admit anybody, except those categories, a great deal would be lost in education in the United States. So in the end, we concluded that affirmative action programs that did not involve fixed quotas that, in effect, involved goals, had—were entitled to be upheld.
JIM LEHRER: Now the views of two constitutional law professors: Kathleen Sullivan of Stanford University and Douglas Kmiec of Pepperdine University. Doug Kmiec, how should Lewis Powell be remembered?
DOUGLAS KMIEC, Pepperdine University Law School: Well, I think Lewis Powell has to be remembered as a very kind, very gentle soul, somebody who was very approachable and very friendly, but Lewis Powell was also a pragmatic centrist, someone who was quite willing to balance constitutional values, and perhaps the hallmark of Lewis Powell's career is that he always tried to give something for everybody in his constitutional decision-making. The case you asked him about, Jim, the Baake case, is a perfect example of that. He held both that race was a suspect classification and, hence, required a compelling state interest, but in the same breath he tried to articulate that race could be used on some occasions if, in fact, it promoted educational diversity.
JIM LEHRER: Kathleen Sullivan, what would you add or subtract to that—from that?
KATHLEEN SULLIVAN, Stanford University Law School: Well, I think Doug Kmiec is exactly right that he sat at the very center of the court. And in some ways that made him one of the most powerful men in America in the late 70's and the 80's. He sat astride the ideological fault lines of the court, and so he could say race preferences were okay if you use them discreetly and a little bit but not if you use them too openly and too far. He was a gentile, courtly southern aristocrat, who reflected, in a sense, the kind of politics of moderate Republicanism. He could side with the privacy interest backed by Planned Parenthood, a right to privacy for contraception and for abortion, which he always supported, but not a right to privacy when it came to gay rights. Perhaps one of the most important votes he cast was one in which he came out in the majority against a right of privacy for private, consensual sex between two men in the privacy of their own bedroom. That was the Bauers Vs. Hardwick decision in 1987. So he was for privacy when it came to abortion and contraception, not when it came to gay rights. He was a moderate egalitarian. He was willing to support the rights of women to get equal pay, but he wouldn't have integrated every institution of our society by gender, didn't think men had to be admitted to all-women nursing schools, and I dare say he probably wouldn't have thought women had to be admitted to the Virginia Military Institute, as the court decided a few terms ago. He supported the rights of very appealing cases, like the rights of illegitimate children to inherit from their parents, the rights of a grandmother to live with her grandchildren who were cousins, rather than siblings, in her own home. But when it came to poor people or some of the other downtrodden in society, he wasn't quite such an egalitarian. He voted that in an important decision called Rodriguez that cities—poor children in inner cities didn't have to get money from rich suburbs to go to school. Of course—
JIM LEHRER: Yes. Doug Kmiec.
DOUGLAS KMIEC: One of the things that's true there is that when you have a justice like Justice Powell, who is balancing multiple factors, when he came to a decision like Rodriguez, like Kathleen talks about, he was very concerned about intrusion into local government decision-making. One of the things that was a characteristic about Lewis Powell—in fact, one of the things that endeared him to Richard Nixon—was that he was a strong supporter of federalism and state's rights. This came from Lewis Powell's own association as president of the Richmond School Board, which he viewed as the very embodiment of democracy. And so one of the things for Powell was that he was to some degree very unpredictable and, therefore, for people who have strong views one way or the other, very unsatisfying, but one view that he held true to was that he wanted to preserve local government institutions. And I think that pretty much explains the Rodriguez decision not to have the federal government become the provider of uniform standards in education policy.
JIM LEHRER: Well, Doug Kmiec, on this question I asked him in 1989 about ideology and that sort of thing, he was considered a conservative, was he not, when Richard Nixon appointed him in 1971?
DOUGLAS KMIEC: Well, he was considered a conservative, but, Jim, you have to remember what kind of conservative Richard Nixon was. Richard Nixon was a pragmatic conservative himself. He often strayed from what would be perceived today as conservative values. And, in fact, the strongest criticism of Lewis Powell comes from the fact that instead of bringing a kind of principled texturalism to the Constitution, which I think today's court, Justice Scalia and Justice Rehnquist would bring to the court. Justice Powell brought—tried to set politics aside but he tried to set politics aside by identifying a relevant set of values in each case. He was almost as if he was a trial lawyer coming to the record of the case, looking to decide it on particular facts.
JIM LEHRER: And not bring his own ideology, or his own views to the table.
DOUGLAS KMIEC: Not bring his own ideology or views to the table, but, of course, we all have to question how much we can screen our own views or ideology, and that's where some of the criticism of Justice Powell comes in.
JIM LEHRER: Now, Kathleen Sullivan, from the liberal point of view, he was seen as he went in as a conservative. How was he seen as he went out?
KATHLEEN SULLIVAN: Well, when he went out, liberals were very happy to have had him there for a long period in the 70's and 80's, because he provided the crucial fifth vote to continue to uphold affirmative action, to uphold abortion, to keep prayer out of schools at a time when it looks like President Reagan was quickly going to get a votes to overturn Roe Vs. Wade and get rid of affirmative action. So when he went out, he was thought of as a person who provided the kind of holding action for liberal causes for quite some time, even though at bottom, as we've both agreed, he really was a rather socially conservative justice.
JIM LEHRER: Do you agree with Doug Kmiec's point, though, that when he sat down to see—to rule on a particular case that he kind of tried to get his own views out of it before he made a decision?
KATHLEEN SULLIVAN: I do think he tried to approach every case one case at a time and as fairly as possible. And I think your interview captured that perfectly. But when you do try to balance both sides the way he did, you wind up with a place that is a kind of political place. It's political centerism, or moderation. And that's really how he can best be remembered, as a person who's kept true to the center, avoided extreme ideologies, but wound up keeping the court on a politically moderate course.
DOUGLAS KMIEC: He's also a justice, Jim, that sort of disproves the modern maxim that presidents are often dissatisfied with their judicial appointments. Richard Nixon was so satisfied with Lewis Powell, so satisfied that he had mirrored the same values that Richard Nixon had brought to public life, that when Lewis Powell retired, he reminded Justice Powell that as he said when he nominated him, 10 years of Lewis Powell is worth 20 years of anyone else.
KATHLEEN SULLIVAN: Everyone loved him. He was beloved by the other justices. He was thought of as a kind of judge's justice, and everybody thought he was kind and fair.
JIM LEHRER: Is that why they liked him so much, because he was kind and fair?
KATHLEEN SULLIVAN: Well, I think because he seemed to truly try to be judicious, to take the road seriously, to try to consider cases fairly. There was perhaps only one issue on which he was deeply ideological in a right-wing way. He believed, as Doug Kmiec suggested earlier, in state's rights, the prerogatives of state and local governments, which are closer to the people to decide how schools should be run and what police and firemen should be paid. And he didn't think the federal government should intrude too far there. That was perhaps the only piece of Powell that would have been dear to President Reagan, as well as President Nixon.
JIM LEHRER: Doug Kmiec, in all the statements that people made about him today, I was touched by or struck by the fact that people said he was a quiet man, a modest man, and then people would add, unlike some of the members of the current U.S. Supreme Court. Would you agree with that?
DOUGLAS KMIEC: Well, I don't want to compare the current members of the Supreme Court, but I will—I do agree with the assessment that he was a modest and a humble man. In fact, the reason he brought that humility to the court was because while he was a national legal figure, he had been president of the American Bar Association, he had not been schooled in constitutional law in a comprehensive way. He didn't sit in on Kathleen Sullivan's class, for example.
JIM LEHRER: And he hadn't been a judge before. Yes. It was his first judicial appointment, was it not?
DOUGLAS KMIEC: As a result, he worked very hard. People reported time and again that he was working six, seven days a week bringing the records home in cases. His eyes were so tired at one point that he couldn't read any longer himself, but he asked his late wife to read to him so that he could understand the case.
JIM LEHRER: A quiet, gentle man, Kathleen Sullivan.
KATHLEEN SULLIVAN: Absolutely. He was a quiet, gentle man. When he spoke on the Supreme Court bench, everybody listened. A hush came over the courtroom because it was so rare and so special. But, you know, he was willing to admit his mistakes, and perhaps his most famous admission of a mistake was that he said some years after that decision about homosexual sodomy, he said, I think I made a mistake in that one, if the bedroom is private and if abortion is a private matter, perhaps sex should have been a private matter too. So sometimes when you're close to the middle and you try to weigh things at the center, you sometimes may admit you called it wrong. And he had the courage to say so.
JIM LEHRER: Okay. Thank you both very much.
DOUGLAS KMIEC: You're welcome.