The History Book Club discussion

This thread is about Associate Justice Lewis F. Powell, Jr. and related topics.

Biography
A Virginian by birth, Lewis Powell spent most of his life in the Tidewater State. He rose to the top of his profession when he was elected president of the American Bar Association in 1964.

Powell was a moderate before he joined the Court. He served on local and state boards of education at a time when there were strong demands to resist racial desegregation. With a Supreme Court in balance ideologically, Powell was cast in the middle of several important issues during his tenure. His vote decided the Court's first confrontation with abortion and affirmative action.


Personal Information
Born Thursday, September 19, 1907
Died Tuesday, August 25, 1998
Childhood Location Virginia
Childhood Surroundings Virginia
Religion Presbyterian
Ethnicity English/Welsh
Father Lewis F. Powell
Father's Occupation Businessman
Mother Mary Gwathmey
Family Status Upper

Position Associate Justice
Seat 2
Nominated By Nixon
Commissioned on Wednesday, December 8, 1971
Sworn In Thursday, January 6, 1972
Left Office Thursday, June 25, 1987
Reason For Leaving Retired
Length of Service 15 years, 5 months, 19 days
Home Virginia



source: Lewis F. Powell, Jr.. The Oyez Project at IIT Chicago-Kent College of Law. 18 December 2011. .

Lewis Franklin Powell, Jr. (September 19, 1907 – August 25, 1998) was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was also widely well regarded by contemporaries because of his personal good manners and politeness. He has become infamous for drafting the Powell Memoraundum, a confidential memorandum for the US Chamber of Commerce that described a strategy for the corporate takeover of the dominant public institutions of American society.

Early life
Powell was born in Suffolk, Virginia. He attended Washington and Lee University, garnering both an undergraduate and a law degree from that university. He was elected president of student body as an undergraduate and was a member of Phi Kappa Sigma fraternity and the Sigma Society. At a leadership conference, he met Edward R. Murrow and they became close friends. He attended Harvard Law School for a master's degree.

During World War II, he spent more than three years in Europe and North Africa. He started as a First Lieutenant, and eventually rose to the rank of Colonel. He worked mostly in intelligence, decoding German messages.

Powell was a partner for over a quarter of a century at Hunton, Williams, Gay, Powell and Gibson, a large Virginia law firm, with its primary office in Richmond (now known as Hunton & Williams LLP). Powell practiced primarily in the areas of corporate law (especially in the field of mergers and acquisitions) and in railway litigation law. He had been a board member of Philip Morris between 1964 until his appointment in 1971 and had acted as a contact point for the tobacco industry with the Virginia Commonwealth University. Through his law firm, Hunton Williams Gay Powell & Gibson (later just Hunton & Williams) he represented the Tobacco Institute and the various tobacco companies in numerous law cases.

In 1936, he married Josephine Pierce Rucker, with whom he had three daughters and one son. Powell's wife died in 1996.

Virginia government
Powell also played an important role in local community affairs. From 1952 to 1961, he was Chairman of the Richmond School Board. Powell presided over the school board at a time when the Commonwealth of Virginia was locked in a campaign of defiance against the Supreme Court's decision in Brown v. Board of Education. (Interestingly, Powell's law firm had represented one of the defendant school districts in the case that was decided by the Supreme Court under the "Brown" label. Powell did not take any part in his law firm's representation of that client school district. The lawsuit, Davis v. County School Board of Prince Edward County, later became one of the five cases decided under the caption Brown v. Board of Education before the Supreme Court of the United States in 1954.)

The Richmond School Board had no authority at the time to force integration, however, as control over attendance policies had been transferred to the state government. Powell, like most white Southern leaders of his day, did not speak out against the state's defiance, but he would foster a close relationship with many black leaders, such as civil rights lawyer Oliver Hill, some of whom offered key support for Powell's nomination. Powell proudly swore in Virginia's first black governor, Douglas Wilder, in 1990. Powell was President of the American Bar Association from 1964–1965, where he enjoyed an enormously productive tenure. Powell led the way in attempting to provide legal services to the poor, and he made a key decision to cooperate with the federal government's Legal Services Program. Powell was also involved in the development of Colonial Williamsburg, where he was both a trustee and general counsel.

Powell Memorandum
Based in part on his experiences as a corporate lawyer and as a representative for the tobacco industry with the Virginia legislature, he wrote the Powell Memorandum to a friend at the US Chamber of Commerce. The memo called for corporate America to become more aggressive in molding politics and law in the US and may have sparked the formation of one or more influential right-wing think tanks.

In August 1971, prior to accepting Nixon's request to become Associate Justice of Supreme Court, Lewis Powell sent the "Confidential Memorandum", better known as the Powell Memorandum. It sounded an alarm with its title, "Attack on the American Free Enterprise System." The previous decade had seen the increasing regulation of many industries. Powell argued, "The most disquieting voices joining the chorus of criticism came from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians." In the memorandum, Powell advocated "constant surveillance" of textbook and television content, as well as a purge of left-wing elements.

In an extraordinary prefiguring of the social goals of business that would be felt over the next three decades, Powell set his main goal: changing how individuals and society think about the corporation, the government, the law, the culture, and the individual. Shaping public opinion on these topics became and would remain a major goal of business.

source: wikepedia

Supreme Court tenure
In 1969, President Nixon asked him to join the Supreme Court, but Powell turned him down. In 1971, Nixon asked him again. Powell was unsure, but Nixon and his Attorney General, John N. Mitchell, persuaded him that joining the Court was his duty to the nation. One of the primary concerns that Powell had was the effect leaving his law firm and joining the high court would have on his personal financial status, as he enjoyed a very lucrative private practice at his law firm. Another of Powell's major concerns was that, as a corporate attorney, he would be unfamiliar with many of the issues that would come before the Supreme Court, which at that time, as today, heard very few corporate law cases. Powell feared this would place him at a disadvantage and make it unlikely that he would be able to influence his colleagues.

He and William Rehnquist were nominated by President Nixon on the same day to serve on the Court. Powell took over the seat of Hugo Black. On the day of Powell's swearing-in, when Rehnquist's wife Nan asked Josephine Powell if this was the most exciting day of her life, Josephine reportedly said, "No, it is the worst day of my life. I am about to cry."

Lewis Powell served from January 7, 1972 until June 26, 1987, when he resigned.

Powell compiled a decidedly moderate record on the Court, cultivating a reputation as a swing vote with a penchant for compromise. (The most detailed account of Justice Powell's Supreme Court tenure is in John Calvin Jeffries's biography Lewis F. Powell). While on the court, he worked hard at familiarizing himself with the issues and arguments in the cases and coming up with distinct and well-reasoned positions on them.

For example, his opinion in Regents of the University of California v. Bakke (1978), joined by no other justice in full, represented a compromise between the opinions of Justice William J. Brennan, who, joined by three other justices, would have upheld affirmative action programs under a lenient judicial test, and the opinion of John Paul Stevens, also joined by three justices, who would have struck down the affirmative action program at issue in the case under the Civil Rights Act of 1964. Powell's opinion striking down the law urged that "strict scrutiny" be applied to affirmative action programs but hinted that some affirmative action programs might pass Constitutional muster. Powell, who dissented in the case of Furman v. Georgia (1972), striking down capital punishment statutes, was a key mover behind the Court's compromise opinion in Gregg v. Georgia (1976), which allowed the return of capital punishment but only with procedural safeguards.

In the controversial case of Snepp v. U.S. (1980), the Court issued a per curiam upholding the lower court's imposition of a constructive trust upon former CIA agent Frank Snepp and its requirement that he preclear all his published writings with the CIA for the rest of his life. In 1997, Snepp gained access to the files of Justices Thurgood Marshall (who had already died) and William Brennan (who voluntarily granted Snepp access) and confirmed his suspicion that Powell had been the author of the per curiam opinion. Snepp later pointed out that Powell had misstated the factual record and had not reviewed the actual case file (Powell was in the habit of writing opinions based on the briefs alone) and that the only justice who even looked at the case file was John Paul Stevens, who relied upon it in composing his dissent. From his days in counter-intelligence during World War II, Powell had developed a great respect for the need for government secrecy, a concern he also urged on his colleagues during the Court's consideration of 1974's United States v. Nixon.

Powell wrote the majority opinion in First National Bank of Boston v. Bellotti (1978), which overturned a Massachusetts law restricting corporate contributions to referendum campaigns not directly related to their business.

Powell was the swing vote in Bowers v. Hardwick 478 U.S. 186 (1986), in which the Court upheld Georgia's sodomy laws. He was reportedly conflicted over how to vote. A conservative clerk advised him to uphold the ban, and Powell, who believed he had never met a gay person (not realizing that one of his own clerks was a closeted homosexual), voted to uphold Georgia's law, though Powell in a concurring opinion expressed concern at the length of the prison terms prescribed by the law. The Court, 17 years later, expressly overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003).

In 1990, after his retirement from the Court, he said, "I think I made a mistake in the Hardwick case," marking one of the few times a justice expressed regret for one of his previous votes.

Powell also expressed post-retirement regret over his majority opinion in McCleskey v. Kemp (1987), where he voted to uphold the death penalty against a study that demonstrated that – except as punishment for the most violent of crimes – people who killed whites were significantly more likely to receive the death penalty as punishment for their crimes than people who killed blacks.

Retirement
Powell was nearly 80 years old when he retired from his position as Supreme Court justice. His career on the bench was summed up by Gerald Gunther, a professor of constitutional law at Stanford Law School, as "truly distinguished" because of his "qualities of temperament and character," which "made it possible for him, more than any contemporary, to perform his tasks in accordance with the modest, restrained, yet creative model of judging."

He was succeeded by Anthony Kennedy. Kennedy was the third nominee for his position. The first, Robert Bork, was not confirmed by the United States Senate. The second, Douglas H. Ginsburg, withdrew his name from consideration after admitting to having smoked marijuana both as a college undergraduate and as a law professor with his students.

Following his retirement from the high court, Powell sat regularly on various United States Courts of Appeals around the country, especially enjoying sitting on circuit courts venued in temperate climes during the winter months.

Justice Powell died at his home in the Windsor Farms area of Richmond, Virginia, of pneumonia, at 4:30 in the morning of August 25, 1998, at the age of 90. He is buried in Richmond's Hollywood Cemetery.

In her 2002 book, The Majesty of the Law, Justice Sandra Day O'Connor wrote, "For those who seek a model of human kindness, decency, exemplary behavior, and integrity, there will never be a better man."

Powell's personal and official papers were donated to Washington and Lee University School of Law, where they are open for research subject to certain restrictions.

J. Harvie Wilkinson, currently a judge on Fourth Circuit, was a law clerk for Justice Powell. Wilkinson later wrote a book titled Serving Justice: A Supreme Court Clerk's View describing the experience.

In 1993, President Clinton signed into law an act of Congress renaming the Federal couthouse at Richmond, Virginia in his honor, the Lewis F. Powell, Jr. United States Courthouse.

sourece: wikipedia

books referenced:
by Sandra Day O'Connor

Serving justice: A Supreme Court clerk's view (no cover) by J. Harvie Wilkinson

Books about:

by John C. Jeffries Jr.
A look at one of the most important Supreme Court Justices since WWII & how the controversial decisions of his tenure, from abortion to the constitutionality of capital punishment, helped determine major issues of this century. B&W photos.

by Office of Air Force History

Life & Career of Justice Lewis Powell

Retired Justice Lewis Powell Jr. discusses his legal career as an attorney in Virginia and as a Supreme Court Justice. Issues addressed by Justice Powell include school desegregation, the current Court’s place in history, the issue of the Nixon tapes, and the future of abortion laws.

August 4, 1988

Piercing the Fog: Intelligence and Army Air Forces Operations in World War II

by John F. Kreis (no photo)

Synopsis:

Piercing the Fog discusses the development of new sources and methods of intelligence collection; requirements for intelligence at the strategic, operational, and tactical levels of warfare; intelligence to support missions for air superiority, interdiction, strategic bombardment, and air defense; the sharing of intelligence in a coalition and joint service environment; the acquisition of intelligence to assess bomb damage on a target-by-target basis and to measure progress in achieving campaign and war objectives; and the ability of military leaders to understand the intentions and capabilities of the enemy and to appreciate the pressures on intelligence officers to sometimes tell commanders what they think the commanders want to hear instead of what the intelligence discloses. The complex problems associated with intelligence to support strategic bombardment in the 1940s will strike some readers as uncannily prescient to global Air Force operations in the 1990s. A half century ago, accurate, timely intelligence contributed significantly to victory and hastened the end of World War II. Such a legacy is worth reading and thinking about by all those responsible for building, maintaining, and employing air power. How well intelligence is integrated with air operations is even more important today than it was in the past. It will continue to prove as critical in the next century as it has been in this one. RICHARD P. HALLION Air Force Historian.

ULTRA and the Army Air Forces in World War II: An Interview with Associate Justice of the U.S. Supreme Court Lewis F. Powell, Jr. - ENIGMA, MAGIC, Codebreaking, Crossbow, Colossus, Intelligence

by U.S. Government (no photo)

Synopsis:

ULTRA and the Army Air Forces in World War II is part of a continuing series of historical volumes produced by the Office of Air Force History in direct support of Project Warrior. Since its beginning, in 1982, Project Warrior has captured the imagination of Air Force people around the world and reawakened a keener appreciation of our fundamental purpose as a Service: to deter war, but to fight and win should deterrence fail.

This volume is the first in the Warrior series to focus on intelligence, the collected and interpreted information about adversaries, which is the basis of wise decisionmaking in war. While intelligence is important to all military operations, it is especially significant to air forces, for the targets we choose and the ability to reach and destroy them often determine whether the speed, flexibility, and power of the aerial weapon is used to its utmost capacity to affect the outcome of combat.

Associate Justice of the U.S. Supreme Court Lewis F. Powell, Jr., was one of a small group of people specially selected to accept and integrate ULTRA, the most secret signals intelligence from intercepted and decoded German military radio transmissions, with intelligence from all other sources. From May 1944 to the end of the war in Europe, he served as the ULTRA officer on General Carl Spaatz's United States Strategic Air Forces staff. Earlier, Colonel Powell had served as an intelligence officer with the 319th Bomb Group, the Twelfth Air Force, and the Northwest African Air Forces. He finished the war as Spaatz's Chief of Operational Intelligence in addition to carrying out his ULTRA duties. The Air Force is grateful to Justice Powell for his generosity in giving his time and recollections so that his experiences can be of benefit, through the medium of history, to the Service today and in the future.

During World War II, the Americans and British intercepted and read hundreds of thousands of their enemies' secret military and diplomatic messages transmitted by radio. ULTRA was the designation for the signals intelligence derived from the radio communications which the Germans encrypted on their high-grade cipher machine called ENIGMA. The British Government Code and Cipher School at Bletchley Park, England, deciphered, analyzed, and evaluated the intercepted ENIGMA communications, produced ULTRA intelligence, and transmitted ULTRA to operational headquarters. The payoff for intelligence was in battle. Only now in the 1980s is the influence of ULTRA on Allied strategy, tactics, and victory beginning to be widely acknowledged and understood.

The Germans knew their enemies were listening to their secret radio communications, but they were confident their messages were undecipherable. The ENIGMA machine so enciphered the messages that the Germans assumed the contents could be deciphered only by duplicate ENIGMAs set according to precise and frequently changed settings. ENIGMA had been sold commercially in the 1920s, but the Germans modified it for military use, making it more complex and secure. The German navy began using ENIGMA in 1926, the German army in 1928, and the German Air Force in 1935.

Batson v. Kentucky
476 U.S. 79 (1986)


James Batson (L) with his mother Rose (R) (Sean Rameswaram)

At the trial of James Batson in 1982, the prosecution eliminated all the black jurors from the jury pool.

Batson objected, setting off a complicated discussion about jury selection that would make its way all the way up to the Supreme Court.

On this podcast episode of More Perfect, the Supreme Court ruling that was supposed to prevent race-based jury selection, but may have only made the problem worse.

The key links: - The prosecutor's papers highlighting black jurors from the trial of Timothy Tyrone Foster

The key voices: - James Batson, the original plaintiff in Batson v. Kentucky - Joe Guttman, the prosecutor in James Batson's case - David Niehaus, lawyer at the Jefferson County Public Defender's Office - Jeff Robinson, director for the ACLU Center for Justice - Bryan Stevenson, founder and executive director of the Equal Justice Initiative - Stephen B. Bright, Harvey Karp Visiting Lecturer in Law at Yale Law School - Nancy Marder, professor of law at IIT Chicago-Kent College of Law The key cases: - 1986: Batson v. Kentucky - 2016: Foster v. Chatman


Joe Gutmann with his students in the mock trial courtroom built at the back of Gutmann's classroom (Sean Rameswaram)

Other:
Link to NPR Podcast:
Link to Supreme Court Oral Argument:
Link to Prosecutor's Papers:

Facts of the case
Batson, a black man, was on trial charged with second-degree burglary and receipt of stolen goods. During the jury selection, the prosecutor used his peremptory challenges to strike the four black persons on the venire, resulting in a jury composed of all whites. Batson was convicted on both of the charges against him.

Conclusion

7–2 DECISION FOR BATSON
MAJORITY OPINION BY LEWIS F. POWELL, JR.

The Court found that the prosecutor's actions violated the Sixth and Fourteenth Amendments of the Constitution.

Relying heavily on precedents set in Strauder v. West Virginia (1880) and Swain v. Alabama (1965), Justice Powell held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it "undermines public confidence in the fairness of our system of justice."

Without identifying a "neutral" reason why the four blacks should have been excluded from the jury, the prosecutor's actions were in violation of the Constitution.


Joe Gutmann (L) and James Batson (R) sit together in Gutmann's classroom (Sean Rameswaram)

More:
Oyez:
Foster v Chatman:

Discussion Topic:

1. Do you agree or disagree that the Supreme Court ruling that was supposed to prevent race-based jury selection, may have only made the problem worse? Why or why not?

2. Did the prosecutor's use of peremptory challenges to exclude the four blacks from the jury violate Batson's Sixth and Fourteenth Amendment rights to a fair jury trial and his Fourteenth Amendment right to equal protection of the laws?

Source(s): Oyez, NPR More Perfect

In Search of the Constitution - Justice Lewis F. Powell, Jr. June 25, 1987

Associate Justice Lewis Powell, Jr. discusses some of his most controversial cases, including those dealing with executive privilege, corporal punishment and affirmative action.



TRANSCRIPT

JUSTICE F. POWELL, JR: Well, the Nixon tapes case was a hard case, simply because of the implications of a controversy with the President of the United States that implicated him personally in the most direct way. It led undoubtedly to his resignation or threatened impeachment.

BILL MOYERS: In this hour, a conversation with Supreme Court Justice Lewis F. Powell Jr. I’m Bill Moyers.

BILL MOYERS: When President Richard Nixon nominated Lewis Powell Jr. To the Supreme Court in 1971, he and the nation must have thought that the court was getting a true southern conservative. Powell, then 64, had been a successful corporate lawyer, president of the American Bar Association, and a pillar of the social and civic life of Richmond, Virginia.

Yet once on the bench, Justice Powell has proved, as is so often the case, to be his own man. Hard to predict, bringing a complex mind to bear on complex issues from affirmative action to the death penalty, Justice Powell has not always fitted the stereotype of the southern conservative in his legal opinions. All who know him personally speak of him as having the best qualities of a true southern gentleman, considerate, sensitive, and courtly.

BILL MOYERS: Lewis F. Powell Jr. Was born in Suffolk, Virginia, southeast of Richmond. In those pre-World War I days, even little boys were sometimes clad in dresses. His formative years, however, were spent in Virginia’s capital, Richmond, where he attended McGuire Prep School, playing first base for the school’s baseball team. As he probably remembers, he was the team’s leading hitter.

After McGuire, Powell studied at Washington and Lee University in Lexington, Virginia, earning a bachelor’s degree, magna cum laude, in 1929, then a law degree two years later. From Washington and Lee, he went to Harvard Law School for a master’s degree in law. The mid ’30s saw him as a young lawyer, getting a formidable legal career as a litigator in general civil practice.

BILL MOYERS: World War II interrupted that career. He served as a combat and staff intelligence officer with the US Army Air Force in both the North African and European theaters of operation. He came out a full colonel. At war’s end, he rejoined his law firm in Richmond. In addition to his practice, he served as president of the Richmond Public School Board and then the Virginia State Board of Education.

In the face of intense pressure for massive resistance to desegregation, Powell advocated keeping the schools open. His voluntary efforts for legal rights for the disadvantaged led President Lyndon Johnson to appoint him to the National Advisory Committee on legal services to the poor. Powell’s roots run deep in Virginia. He was active in revising the state’s new constitution, adopted in 1970. Earlier this year, his alma mater, Washington and Lee University, honored him at a ceremony where his portrait was unveiled by two of his grandchildren.

JUSTICE F. POWELL, JR: Returning to W and L is always a joy. I spent six of the happiest years of my life here. Today, you have done me the honor of a portrait. I’m proud to have had it unveiled by two of my grandchildren. Awfully glad you all didn’t fumble the ball over there.

BILL MOYERS:You do not need to be around Justice Powell long to realize that, in addition to legal career and his varied civic activities, he is, without question, very much a family man. When we met for this interview at the Supreme Court, Justice Powell surprised me by bringing not only a copy of the Constitution of the United States, but one of the Soviet Union, as well.

JUSTICE F. POWELL, JR: I thought you’d be interested in it. It has 174 articles.

BILL MOYERS: Constitutions of the Union of Soviet Socialist Republics. 1977, it was adopted. Now, what intrigues you about it? Why did you bring this?

JUSTICE F. POWELL, JR: I thought about its length in the first place. It has 174 articles. Our Constitution has seven articles, plus the Bill of Rights, plus the amendments. But the Bill of Rights added 10, really, as a basic part of the original Constitution. Then we had the Civil War amendments. My Virginia friends would say I should’ve said the war between the state amendments. I’ll tell you what Griff Bell used to say. Down in Georgia, they refer to that war as the War of Northern Aggression. But in any event, these are sections of the Soviet Constitution that deal with what we would call human rights and basic liberties.

BILL MOYERS: There’s a point to all this. Read them to me.

JUSTICE F. POWELL, JR: In accordance with the interests of the people and in order to strengthen the development of the social system, citizens of the USSR are guaranteed freedom of speech, freedom of the press, freedom of assembly, freedom of meetings, street processions, and demonstrations. And if I go on a little bit, citizens of the USSR are guaranteed freedom of conscience — that is, the right to profession or not to profess any religion — and to conduct religious worship or atheistic propaganda. Citizens of the USSR are guaranteed inviolability of the person. No one may be arrested, except by court decision or on the warrant of a prosecutor, and so on.

BILL MOYERS: Sounds remarkably like the United States Bill of Rights.

JUSTICE F. POWELL, JR: You’d think they borrowed it.

BILL MOYERS: So what’s the difference, other than the fact that it’s a closed system? What’s the difference?

JUSTICE F. POWELL, JR: The difference is that the judicial branch of the Soviet Union — if you can call it a branch — has no authority to enforce those rights. The Supreme Soviet is the premium authority. And so if Miranda for example, in the Soviet Union felt that he had been imposed upon, or the woman who had been raped and who ended up as one of the plaintiffs in Roe v. Wade had tried to get it to court to set these rights. And a judge would have hesitated a long time before he proclaimed that the rights had been violated in some way that required redress.

BILL MOYERS: So the courts are not independent there.

JUSTICE F. POWELL, JR: They’re not independent, and it’s fair to say that this is not true alone of the Soviet Union or perhaps indeed of the Communist Bloc. I certainly am not familiar with the systems in many of the other countries. I know the English system very well, and while they do not have a written constitution, the English tradition that we inherit that goes back, as you know, to Magna Carta and the English Bill of Rights and the habeas corpus writ, so that without a constitution, most of our rights still exist in England. But Parliament could change them any day it wants to. And that’s the difference.

But coming back to your question, the courts of the Soviet Union have no authority to enforce a constitution.

BILL MOYERS: It’s not that this court has troops it can send to compel obedience to your decrees. What is it? What’s the source of the court’s power in our society?

JUSTICE F. POWELL, JR: It’s not easy to define. I suppose all one can say, really, is that over the period of all of these decades now, two centuries, uniformly, there has been a high degree of respect for the judicial branch at the state level and also at the federal level. And in the end, the people make possible the authority that the courts in our country have.

BILL MOYERS: They give it the moral authority that it possesses.

JUSTICE F. POWELL, JR: They do. And our Constitution purports to express the will of the people. Not the will of a king, but the will of the people.

BILL MOYERS: Not the will of a party.

JUSTICE F. POWELL, JR: Not the will of a party.

BILL MOYERS: It’s those three branches of government that, no matter how inefficient the system may be, keeps each one a check on the other.

JUSTICE F. POWELL, JR: Yes. And I think it’s fair to say, Bill, that I think the President and the Congress feel a high degree of responsibility to protect and preserve the Constitution.

BILL MOYERS: There’s always a little poaching going on between the executive and the legislature, the legislature and the courts, the courts and the — in fact, a lot of folks in the state legislatures and the Congress believe that your court poaches all the time.

JUSTICE F. POWELL, JR: Well, one of the problems that often is perceived about the court is the fact that sometimes one justice appears to be making the decision. You have a five to four decision in a very important case. And that’s part of our system is often misunderstood, not only in our country, but particularly abroad.

In some of the countries and some of the Western democracies, open dissent is not permitted. There may be dissents, but once the decision is made, the decision is reported without dissent. But, in my view, the dissents have a very useful purpose.

BILL MOYERS: When you object to a majority opinion, you write a dissent. What purpose does that serve?

JUSTICE F. POWELL, JR: I think it serves basically and initially the purpose of keeping the majority honest, in a broad sense of that term. If you were writing in a court opinion — this doesn’t happen very often, perhaps, but if it were a close case, and you were writing the court opinion, and you know perfectly well that there’s going to be a scalding dissent — you’re all the more careful as to what you say and what you decide.

So the dissent serves a very useful purpose in that respect. And also, as you know and historians who watch the court, of course, know, a dissenting opinion often may become the majority opinion a few years or a good many years later.

Read the remainder of the article at:
Link to videotape:

Other:

by John C. Jeffries Jr. (no photo)

Source: Moyers & Company

BIOGRAPHY

Lewis F. Powell Jr. - Supreme Court Justice, Judge (1907–1998)



Lewis Powell was an associate justice of the Supreme Court of the United States from 1972 to 1987.

Synopsis

Lewis F. Powell Jr. took his seat in the U.S. Supreme Court in January 1972. Powell took a moderate-to-liberal stance on such issues as legalized abortion and civil rights questions. Among his most well-known decisions was Regents of the University of California v. Bakke (1978), in which Powell led the court in ruling that affirmative action was constitutional to achieve diversity.

Early Life

Born on September 19, 1907, in Suffolk, Virginia, Supreme Court Justice Lewis F. Powell Jr. is remembered for being a moderate conservative during his time on the nation's highest court. He enjoyed a comfortable upbringing as the son of a successful businessman.

Powell stayed in his native Virginia to attend college, enrolling at Washington and Lee University. In 1929, he earned a bachelor's degree from the university. He continued his studies there, completing his law degree two years later. Powell headed north to obtain master's degree in law from Harvard University in 1932.

Virginia Lawyer

After completing his legal studies, Powell went into private practice in Richmond, Virginia. He joined the firm of Hunton, Williams, Gay and Moore in 1935 and became one of its partners three years later. In 1936, Powell married his wife Josephine. The couple had three daughters and a son together.

During World War II, Powell served in the U.S. Army Air Force. He eventually rose to the rank of colonel. Powell worked with British intelligence officers on a project decrypting German codes. For his service, he received several honors, including the Bronze Star.

After his return to Richmond, Powell continued to work as an attorney. He was also very involved in his community, serving as the chair of the Richmond School Board for nearly a decade. In the early 1960s, Powell became nationally known as president of the American Bar Association. He also worked on a legal commission for President Lyndon B. Johnson.

Supreme Court Justice

In 1969, President Richard Nixon approached Powell to serve on the U.S. Supreme Court. He turned Nixon down, but he finally accepted the offer when Nixon asked again two years later. At the time, the 64-year-old Powell thought he was too old for the position. But Nixon told reporters that "10 years of him is worth 30 years of most," according to the Boston Globe.

Powell officially took his post as an associate justice in 1972. For roughly 15 years, he proved to be the swing vote on many crucial cases. Powell proved to be a longtime champion for a woman's right to choose to have an abortion, supporting the Roe v. Wade decision in 1973 and defending it numerous times over the years. He also chartered middle ground on the famous affirmative action case of Regents of University of California v. Bakke in 1978. Writing the majority opinion, Powell stated that a person's race or ethnic background could be used as a factor in the university's admissions process, but the school could not set aside openings for any specific demographic.

Despite holding some more liberal positions, Powell still had many conservative beliefs. His vote helped keep anti-sodomy laws on the books in Georgia in the 1986 case of Bowers v. Hardwick. The decision in this case was seen as a setback for gay rights. The following year, Powell found in favor of upholding the death penalty despite the apparent racial imbalance in those executed in McClesky v. Kemp in 1987. Years later, Powell came to consider his position on Bowers v. Hardwick as a mistake.

Final Years

In June 1987, Powell stepped down from the Supreme Court. He still heard cases for the 4th U.S. Circuit Court of Appeals in Virginia after leaving his post. And, for nearly a decade, Powell maintained his chambers at the Supreme Court. He died on August 25, 1998, at his home in Richmond, Virginia. He was 90 years old.

Upon learning of Powell's passing, his former Supreme Court colleague William Rehnquist remembered him as "the very embodiment of 'judicial temperament,'" according to the Washington Post. Rehnquist said that Powell was "receptive to the ideas of his colleagues, fair to the parties to the case, but ultimately relying on his own seasoned judgment." President Bill Clinton also sang Powell's praises, calling him "one of our most thoughtful and conscientious justices," according to the Boston Globe.

A courthouse in Powell's beloved Richmond now bears his name; it is just one of the many posthumous honors awarded to this famed jurist.

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by John C. Jeffries Jr. (no photo)

Source: Biography

Thank you Lorna

The Right-Wing Legacy Of Justice Lewis Powell And What It Means For The Supreme Court Today

By BILL BLUM August 16, 2016; Updated August 15, 2017


The Supreme Court of the United States

[This column was originally published by Truthdig.com]

Chances are if you were asked to name the most influential conservative Supreme Court justice of the last 60 years, you’d nominate the late Antonin Scalia. And you’d have any number of compelling reasons to do so.

Whether you liked him or loathed him, Scalia was a jurisprudential giant, pioneer of the “originalist” theory of constitutional interpretation, consistent backer of business interests, and the author of the 2008 landmark majority decision in District of Columbia v. Heller, which recognized an individual right to bear arms under the Second Amendment. His death in February left a vacancy that has become a hot-button issue in the runup to the November election.

But for all of Scalia’s impact—and notwithstanding the political shivers and convulsions his demise has sparked—I have another contender, or at least a close runner-up, in mind: the late Lewis F. Powell Jr.

“Lewis F. Powell Jr.?” you might ask, with just a trace of skepticism. “Wasn’t he the one-time corporate lawyer whom New York Times columnist Linda Greenhouse eulogized in her 1998 obituary as a ‘voice of moderation and civility’ during his 15-year tenure on the court?”

Yes, that guy. But while Powell has been widely commemorated by Greenhouse and others as both a centrist, a lifelong Democrat and a judicial workhorse, writing more than 500 opinions, his most significant contribution to American legal history was made in secret, some five months before his January 1972 elevation to the bench, and it was anything but moderate.

On Aug. 23, 1971, Powell penned a confidential 6,400-word memorandum and sent it off to his friend and Richmond, Va., neighbor, Eugene Sydnor Jr., then-chairman of the U.S. Chamber of Commerce education committee and head of the now-defunct Southern Department Stores chain.

The memo, titled “Attack on American Free Enterprise System,” was breathtaking in its scope and ambition, and far more right-wing than anything Scalia ever wrote. It was, as writer Steven Higgs noted in a 2012 article published by CounterPunch, “A Call to Arms for Class War: From the Top Down.”

Back in 1971, when the memo was prepared, Powell was a well-connected partner in the Richmond-based law firm of Hutton, Williams, Gay, Powell and Gibson and sat on the boards of 11 major corporations, including the tobacco giant Philip Morris. He also had served as chairman of the Richmond School Board from 1952 to ‘61 and as president of the American Bar Association from 1964 to ‘65. In 1969, he declined a nomination to the Supreme Court offered by President Nixon, preferring to remain in legal practice, through which he reportedly had amassed a personal fortune.

Powell and other business leaders of the era were convinced that American capitalism was in the throes of an existential crisis. A liberal Congress had forced Nixon to create the Environmental Protection Agency and the Occupation and Health Administration. At the same time, consumers were making headway against corporate abuse, both in the courts and legislatively. And the anti-war and the black and brown civil rights movements were all gathering steam and scaring the bejesus out of the corporate oligarchy.

“No thoughtful person can question that the American economic system is under broad attack,” Powell began his analysis. “There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism).”

“But now what concerns us,” he continued, “is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.”

In particular, Powell identified college campuses as hotbeds of dangerous zealotry, fueled by charismatic Marxist professors such as Herbert Marcuse of the University of California, San Diego, along with inspiring New Left lawyers like William Kunstler and Ralph Nader. Together, these “spokesmen” (the male noun being used throughout) were succeeding not only in “radicalizing thousands of the young,” but in Powell’s view also winning over “respectable liberals and social reformers. It is the sum total of their views and influence which could indeed fatally weaken or destroy the system.”

Sounding like an inverted caricature of Vladimir Lenin, who in his seminal pamphlet “What is to be Done?” pondered how the Russian Bolsheviks might seize power, Powell asked directly in the memo, “What specifically should be done?” to awaken the business community from its torpor, spur it to counter the New Left and reassert its political and legal hegemony.

The first step, he reasoned, was “for businessmen to confront this problem [the threat to the system] as a primary responsibility of corporate management.” In addition, resources and unity would be required.

“Strength,” Powell wrote, “lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and the political power available only through united action and national organizations.”

Deepening his call to action, Powell urged the Chamber of Commerce and other business entities to redouble their lobbying efforts and to “recruit” lawyers of “the greatest skill” to represent business interests before the Supreme Court, which under the stewardship of Chief Justice Earl Warren had moved steadily leftward. Powell wrote: “Under our constitutional system ... the judiciary may be the most important instrument for social, economic and political change.”

Apparently stirred by the urgency of the hour, Powell accepted Nixon’s second invitation to join the Supreme Court, tendered in October 1971. He was confirmed by the full Senate two months later by a vote of 89-1, with the sole “nay” ballot cast by Democrat Fred Harris of Oklahoma, a maverick populist, who asserted that Powell was an “elitist” who lacked compassion for “little people.” Powell took his seat the next January.

Powell’s memo, although circulated and discussed within the Chamber and in wider business consortia, never came to light during his confirmation hearings, despite supposedly thorough vetting by the FBI. In fact, it came to public notice only in September 1972, when it was leaked to syndicated columnist Jack Anderson, who devoted two pieces that month to the memo, describing it as “a blueprint for an assault by big business on its critics.” Powell’s views, Anderson argued, “were so militant that [the memo] raises a question about his fitness to decide any case involving business interests.”

Anderson’s warnings fell largely on deaf ears. During his Supreme Court career (1972-1987)—a time when the panel was in transition from its liberal Warren epoch to its conservative reorientation under the leadership of Chief Justice William Rehnquist—Powell provided a reliable vote for corporate causes.

He was especially instrumental in helping to orchestrate the court’s pro-corporate reconstruction of the First Amendment in the area of campaign finance law, which culminated years later in the 2010 Citizens United decision. He joined the court’s seminal 1976 ruling in Buckley v. Valeo, which equated money, in the form of campaign expenditures, with political speech. And he was the author of the 1978 majority opinion in First National Bank of Boston v. Bellotti, which held that corporations have a First Amendment right to support state ballot initiatives.

But it is the secret memo that has proved to be Powell’s most important and lasting legacy. Although he was not the only corporate leader to sound the counterrevolutionary alarm in the early ‘70s, his admonition for concerted action bore fruit almost immediately with the formation in 1972 of the Business Roundtable, the highly influential lobbying organization that within five years expanded its exclusive membership to include 113 of the top Fortune 200 corporations. Combined, those companies accounted for nearly half the output of the American economy.

The Roundtable was followed by a succession of new political think tanks and right-wing public interest law firms. These included the Heritage, Charles Koch, Castle Rock, Scaife, Lynde and Harry Bradley, and Olin foundations, among many others, as well as the Pacific Legal Foundation, the Cato Institute, the Federalist Society and, above all, the Chamber of Commerce National Litigation Center.

Established in 1977, the Chamber’s Litigation Center has grown into the most formidable advocacy group regularly appearing before the Supreme Court. According to the Center for Constitutional Accountability, the Chamber has notched a gaudy 69-percent winning record since John Roberts’ installation as chief justice in 2006. Together with its sister organizations, the Chamber has helped make the Roberts Court the most pro-business high tribunal since the 1930s..

Now, however, with Scalia departed and three sitting justices (Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer) at least 80 years old and nearing inevitable retirement, the transformation of American law wrought by the institutions that Powell envisioned more than five decades ago is potentially at risk.

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by John C. Jeffries Jr. (no photo)

Source: The Huffington Post

The Powell Memo: A Call-to-Arms for Corporations

September 14, 2012

In this excerpt from Winner-Take-All Politics: How Washington Made the Rich Richer — and Turned Its Back on the Middle Class, authors Jacob S. Hacker and Paul Pierson explain the significance of the Powell Memorandum, a call-to-arms for American corporations written by Virginia lawyer (and future U.S. Supreme Court justice) Lewis Powell to a neighbor working with the U.S. Chamber of Commerce.
________________________

In the fall of 1972, the venerable National Association of Manufacturers (NAM) made a surprising announcement: It planned to move its main offices from New York to Washington, D.C. As its chief, Burt Raynes, observed:

We have been in New York since before the turn of the century, because we regarded this city as the center of business and industry. But the thing that affects business most today is government. The interrelationship of business with business is no longer so important as the interrelationship of business with government. In the last several years, that has become very apparent to us.[1]

To be more precise, what had become very apparent to the business community was that it was getting its clock cleaned. Used to having broad sway, employers faced a series of surprising defeats in the 1960s and early 1970s. As we have seen, these defeats continued unabated when Richard Nixon won the White House. Despite electoral setbacks, the liberalism of the Great Society had surprising political momentum. “From 1969 to 1972,” as the political scientist David Vogel summarizes in one of the best books on the political role of business, “virtually the entire American business community experienced a series of political setbacks without parallel in the postwar period.” In particular, Washington undertook a vast expansion of its regulatory power, introducing tough and extensive restrictions and requirements on business in areas from the environment to occupational safety to consumer protection.[2]

In corporate circles, this pronounced and sustained shift was met with disbelief and then alarm. By 1971, future Supreme Court justice Lewis Powell felt compelled to assert, in a memo that was to help galvanize business circles, that the “American economic system is under broad attack.” This attack, Powell maintained, required mobilization for political combat: “Business must learn the lesson . . . that political power is necessary; that such power must be assiduously cultivated; and that when necessary, it must be used aggressively and with determination—without embarrassment and without the reluctance which has been so characteristic of American business.” Moreover, Powell stressed, the critical ingredient for success would be organization: “Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.”[3]


U.S. President Richard Nixon holds a commission that he will present to Lewis F. Powell Jr., left, and another will be given to William Rehnquist, right, at a White House ceremony in Washington, D.C., Dec. 22, 1971. The two men were appointed to the Supreme Court by President Nixon. (AP Photo/Charles Tasnadi)

Powell was just one of many who pushed to reinvigorate the political clout of employers. Before the policy winds shifted in the ’60s, business had seen little need to mobilize anything more than a network of trade associations. It relied mostly on personal contacts, and the main role of lobbyists in Washington was to troll for government contracts and tax breaks. The explosion of policy activism, and rise of public interest groups like those affiliated with Ralph Nader, created a fundamental challenge. And as the 1970s progressed, the problems seemed to be getting worse. Powell wrote in 1971, but even after Nixon swept to a landslide reelection the following year, the legislative tide continued to come in. With Watergate leading to Nixon’s humiliating resignation and a spectacular Democratic victory in 1974, the situation grew even more dire. “The danger had suddenly escalated,” Bryce Harlow, senior Washington representative for Procter & Gamble and one of the engineers of the corporate political revival was to say later. “We had to prevent business from being rolled up and put in the trash can by that Congress.”[4]

Powell, Harlow, and others sought to replace the old boys’ club with a more modern, sophisticated, and diversified apparatus — one capable of advancing employers’ interests even under the most difficult political circumstances. They recognized that business had hardly begun to tap its potential for wielding political power. Not only were the financial resources at the disposal of business leaders unrivaled. The hierarchical structures of corporations made it possible for a handful of decision-makers to deploy those resources and combine them with the massive but underutilized capacities of their far-flung organizations. These were the preconditions for an organizational revolution that was to remake Washington in less than a decade — and, in the process, lay the critical groundwork for winner-take-all politics.

Businessmen of the World, Unite!

The organizational counterattack of business in the 1970s was swift and sweeping — a domestic version of Shock and Awe. The number of corporations with public affairs offices in Washington grew from 100 in 1968 to over 500 in 1978. In 1971, only 175 firms had registered lobbyists in Washington, but by 1982, nearly 2,500 did. The number of corporate PACs increased from under 300 in 1976 to over 1,200 by the middle of 1980.[5] On every dimension of corporate political activity, the numbers reveal a dramatic, rapid mobilization of business resources in the mid-1970s.

What the numbers alone cannot show is something of potentially even greater significance: Employers learned how to work together to achieve shared political goals. As members of coalitions, firms could mobilize more proactively and on a much broader front. Corporate leaders became advocates not just for the narrow interests of their firms but also for the shared interests of business as a whole.

Ironically, this new capacity was in part an unexpected gift of Great Society liberalism. One of the distinctive features of the big expansion of government authority in the ’60s and early ’70s was that it created new forms of regulation that simultaneously affected many industries. Previously, the airlines might have lobbied the Civil Aeronautics Board, the steel companies might have focused on restricting foreign competitors, the energy producers might have gained special tax breaks from a favorite congressman. Now companies across a wide range of sectors faced a common threat: increasingly powerful regulatory agencies overseeing their treatment of the environment, workers, and consumers. Individual firms had little chance of fending off such broad initiatives on their own; to craft an appropriately broad political defense, they needed organization.

Business was galvanized by more than perceived government overreach. It was also responding to the growing economic challenges it faced. Organization-building began even before the economy soured in the early 1970s, but the tumultuous economy of that decade — battered by two major oil shocks, which pushed up inflation and dragged down growth — created panic in corporate sectors as well as growing dissatisfaction among voters. The 1970s was not the economic wasteland that retrospective accounts often suggest. The economy actually grew more quickly overall (after adjusting for inflation) during the 1970s than during the 1980s.[6] But against the backdrop of the roaring 1960s, the economic turbulence was a rude jolt that strengthened the case of business leaders that a new governing approach was needed.

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by Jacob S. Hacker (no photo)

Source: Moyers on Democracy