The Ghost of Justice Powell:
How His Cautious Conservatism Still Haunts the Supreme Court

By EDWARD LAZARUS
Thursday, Jul. 10, 2003

When I was a law clerk at the Supreme Court in 1989, Justice Lewis Powell, who had retired two years before, was a spectral presence haunting the building. Tall and gaunt, almost cadaverous in times of illness, Powell would perambulate around the quiet corridors, exchanging pleasantries and generally exuding the southern gentility for which he was renowned.

Justice Powell passed away in 1998. But this Spring, his presence was nevertheless felt at the Court. Indeed, it thoroughly inhabited the Term's recent landmark rulings.

This jurisprudential resurrection is worthy of note. For while Powell's approach to the law often yields comforting results, it is not without its deeply problematic aspects.

Powell's Jurisprudence

In the years prior to his retirement, Powell forcefully commanded the political center of the Burger Court. He imposed on its most important rulings a brand of cautious conservatism that left the legacy of the liberal Warren era significantly intact.

Among Powell's most influential decisions was his solo concurrence in the Court's 1978 decision in Regents of the University of California v. Bakke. There, as the swing vote, he placed his imprimatur on the general principle that diversity in higher education may be considered a sufficiently compelling state interest to justify the use of racial preferences.

In his Bakke concurrence, Powell made clear that he disapproved of the University of California's affirmative action plan, which reserved particular "seats" in the class for minority candidates. But he spoke approvingly about Harvard's affirmative action program, which gave an unquantified "plus" factor to minority applicants.

Later, in 1986, Powell was the swing vote again - this time, with baleful results. Reluctantly, he provided a reluctant fifth vote in favor of the majority ruling in Bowers v. Hardwick, which declined to strike down an anti-sodomy statute.

After much internal back and forth, Powell was ultimately persuaded by then-Chief Justice Warren Burger that the Court simply could not recognized a constitutional right to engage in gay sex. Powell wrote separately in a half-hearted attempt to limit the scope of the Court's ruling, but the result still stood.

Bowers was one of the few decisions Powell lived to regret. A few years after stepping down from the Court, Powell candidly confessed that Bowers had been a mistake.

The Court After Powell: An Institution Divided

When Powell departed from the Court in 1987, there was a bitter fight over his replacement, who ultimately turned out to Justice Anthony Kennedy. The result of Powell's departure, and Kennedy's accession, was to create a bitterly fractured institution.

After Powell left, the remaining liberal justices - William Brennan, Thurgood Marshall, Harry Blackmun, and John Paul Stevens - struggled, often angrily, to maintain the status quo. But the pugnacious conservative activism spearheaded by Chief Justice William Rehnquist and Antonin Scalia generally carried the day. These justices sought an aggressive rollback of Warren Court precedents.

For the past 14 years, from 1988 to 2002, these Justices have dramatically reshaped the legal landscape in fields ranging from federalism, to the death penalty, to the separation of church and state. It seemed that they had banished the compromising, cordial spirit of Powell. But as recent decisions have shown, that's not wholly the case.

Powell's Influence Over This Year's Supreme Court Term

That brings us to the Court's most recent Term - in which both Bakke and Bowers were implicated, and Powell's legacy was thus revived.

In her opinion for the majority in the Michigan Law School case, Justice O'Connor essentially transformed Powell's Bakke concurrence into the Court's majority rule. Like Powell, she used the Harvard "plus system" concept as something of a gold standard for permissible affirmative action programs. And she embraced his basic distinction between invalid, overly quota-like plans, and valid "holistic" plus plans like Harvard's.

The similarities went further too - beyond the basic line Powell drew. Like Powell, O'Connor embraced the diversity rationale. Moreover, borrowing from him, she emphasized that courts must defer to university administrators in their professed need to use affirmative action to achieve diversity in their schools.

Bakke - and specifically, Justice Powell's concurrence - thus survived and thrived this Term. But this was also the Term that tolled a long-overdue death knell for Bowers.

The decision that overruled Bowers was Lawrence v. Texas. There, the Court - in an opinion written by Powell's successor, Justice Kennedy - struck down Texas's criminal prohibition of homosexual sodomy. The Court held that the law violated the constitutional right to privacy protected by the due process clause, and declared that adults have a constitutionally protected right to engage in consensual sex within their homes.

As noted above, Powell's eventual change of heart suggests that he would have applauded the result in Lawrence. But a closer look at his original vote in favor of the majority in Bowers shows why that decision should still serve as a cautionary tale against a more thorough return to Powell's style of judging.

Explaining Powell's Vote In Favor of Bowers v. Hardwick

As a jurisprudential matter, Powell's vote in Bowers is all but impossible to explain. Unlike a Justice Rehnquist or Justice Byron White (who authored Bowers), Powell had no qualms about an expansive constitutional right to privacy.

After all, he had voted in the majority in Roe v. Wade, holding that the right to privacy encompassed a woman's decision to terminate a pregnancy. And he had stuck by Roe even as it was repeatedly and powerfully attacked.

More puzzling still, from a textualist perspective, the case for applying the right to privacy in Bowers was much stronger than the case for applying it in Roe. In the Fourth Amendment, the Constitution explicitly recognizes the special sanctity of the home against government intrusion. Bowers was plainly about an intrusion into the home - even into its deepest sanctuary, the bedroom. Roe, however, was not.

So how can we make sense of Powell's right to privacy votes? The best explanation may lie in his personal experience.

As the head of a prominent law firm in Richmond, Powell had become involved with a personal tragedy involving an illegal abortion. An employee of the firm, who was only 19, had helped arrange the abortion for his girlfriend. She died as a result. The employee ended up in trouble with the law for his role. But a sympathetic Powell intervened and convinced the authorities not to press charges.

Doubtless, the dangers of illegal abortions were graphically imprinted on Powell, who observed firsthand the pain, death, and possible imprisonment that could result. He likely also acquired an understanding of the intimacy of the choices involved.

By contrast, at the justices' secret conference where they met to vote on Bowers, Powell claimed he'd never even met a homosexual. (Ironically, the law clerk working with him on the case was gay.)

This illusion, on Powell's part, perhaps explains why, at the same time that he sympathized with couples' intimate choices when it came to abortion, he seemed had no affinity for the same kind of intimate choices made by gays - or of the ramifications of letting their conduct be criminalized.

The best judges - and sadly, Powell was not one of them - match an ability to see beyond their own experiences with a self-conscious concern not simply to impose their own personal views on the law. It is not that they are not empathic; they are. But they are also modest in realizing the limits of their own experience, and thus of their own empathy.

Unfortunately, Bowers was not the only time that Powell seemed to reduce the meaning of the Constitution to the vagaries of his own personal experience. Powell employed variations of an "I know it when I see it" approach to many areas of law.

Indeed, the hallmark of his approach to the law was his penchant for "balancing" competing interests when coming up with a constitutional rule. And when you come right down to it, balancing is often just a fancy way of saying: "I'm going with my gut." The problem with a balancing test is that there is always, in the end, a finger on the scales somewhere - for the same person doing the balancing also gets to initially assign what weight each competing interest deserves.

In the end, for this reason, a so-called balancing test usually boils down to a totally personalized and result-oriented process of weighing.

Another Parallel Between Powell and O'Connor: Relying Too Greatly on Experience

Of course, Powell is no longer on the Court. But, as noted, the spirit of his jurisprudence is alive and well - and lives on especially in the opinions of Justice O'Connor. Like Powell, her opinions seem to track personal experience almost to a tee. And like Powell, she is not the Justice that she might have been, as a result.

Consider her vote to uphold the Family and Medical Leave Act. Her prior votes in similar federalism cases strongly suggested she should have voted to invalidate the Act. But she didn't. Why?

The reason may be traceable to her own experiences with gender discrimination and the difficulties of juggling a career and family. O'Connor was famously near the top of her Stanford Law School class, yet received no offers to work as a lawyer. The mother of three sons, she worked part-time early in her career, as many women do. On the Court, she is famous for her special concern for the welfare of women and children.

The problem isn't that O'Connor was shaped by her experiences. It is that the empathy she acquired does not always extend beyond them. It was the same with Powell.

It is silly to think, of course, that judges, any more than the rest of us, will render decisions in some philosophical vacuum divorced from life experience. The danger comes, however, whenever personal experience becomes the primary touchstone for constitutional lawmaking. That is the scary side of Justice Powell's ghost - and the Court should be on its guard.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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