Remembering Justice Powell

Lewis PowellAssociate Justice Lewis Powell died August 25 at the age of 90. When appointed to the Court in 1971 by President Nixon, Powell—a prominent corporate lawyer—was 64. The centrist justice served 15 years on the Court until his retirement. In 1931 Powell graduated from Washington and Lee University School of Law in his native Virginia. A year later he received an LL.M. from HLS, where his fellow students included constitutional scholar-in-the-making Paul Freund ’31 S.J.D. ’32, and among his professors was future Supreme Court Justice Felix Frankfurter ’06. In recent years, Powell returned to HLS to preside over the 1988 Ames Moot Court competition.

The Bulletin asked Professor Richard Fallon, who clerked for Powell, to offer his memories of the Justice.

On August 31, I sat with hundreds of others in a sweltering church in Richmond, Va., to pay tribute to Justice Lewis F. Powell, Jr. I was one of Justice Powell’s law clerks during the 1981 Term. Nearly all of his law clerks attended the funeral, with many traveling thousands of miles to get there. We not only admired Justice Powell, but loved him.

To clerk for Justice Powell in 1981–82 was to be at the center of decision making in the Supreme Court. Powell was known then as the "swing" Justice. Roughly speaking, there were four Justices more liberal than he, but four Justices whose views on many issues were more conservative. If the Court was closely divided, Justice Powell’s vote often made the difference.

I was astonished when Justice Powell invited me to clerk for him. My views were much more liberal than his. And when I profess admiration and love for the Justice, I do not mean to suggest that I approved of all of his votes and opinions. Nor do I think that being a "swing" Justice is inherently admirable. Other qualities stood out.

First, Justice Powell worked as hard as I can imagine to embody the virtues of a great and fair judge. He put in long, long hours. (He used to say, quite seriously, that he "only" worked a six-and-one-half-day week, because he found that his health was better if he took Sunday afternoons off.) More important, Justice Powell disciplined himself to consider each case with as much dispassion and longsightedness as he could humanly muster.

Second, Justice Powell was as thoughtful and considerate as anyone that I have ever known. Despite the pressures of his office, he was invariably courteous to and solicitous of virtually everyone he encountered. His graciousness was the more remarkable, because the Justice was an innately shy man. Though lacking in gregariousness, he exuded respect, concern, and good will. He also loved his family and his friends, and they knew it and loved him in return.

Third, Justice Powell was a man of unyielding moral courage. Too liberal to please the conservatives and too conservative to please the liberals, he could not enjoy the sustained approval of any tight cohort, either within or without the Supreme Court. He often said that he found service on the Court to be an isolating experience.

As I said, I would not wish to defend every aspect of Justice Powell’s judicial record. There are many cases that I wish he had decided differently. But his influence was large, and deservedly so. There is greatness in his legacy. Of all the people that I have encountered in my adult life, there is none whom I have admired more than Justice Lewis F. Powell, Jr.

- Professor Richard Fallon

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