National News - Lubbock Retired Justice Powell, a force in affirmative action, dies at 90

Published: Wednesday, August 26, 1998




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WASHINGTON (AP) - Lewis F. Powell stepped into a job he didn't much want and left a big footprint.

The retired Supreme Court justice, who died Tuesday at age 90, was an often decisive voice in U.S. law. Slight and bespectacled, he crowned his legacy with a decision that upheld the concept of affirmative action while limiting its scope - a delicate but so-far durable balance.

Powell also cast the deciding vote in a decision rejecting claims of a constitutional right to homosexual relationships, only to wonder years later if he had done the right thing.

He "approached each case without an ideological agenda, carefully applying the Constitution, the law, and Supreme Court precedent regardless of his own personal views," President Clinton said. "His opinions were a model of balance and judiciousness."

Funeral arrangements had not been completed Tuesday, but Clinton ordered all U.S. government flags - both in the United States and abroad - be flown at half-staff on the day of Powell's interment.

Powell died of pneumonia in his sleep at 3:30 a.m. at his home in Richmond, Va., the court said in a statement. His health had been poor recently.

In January 1997, he closed the Supreme Court office he had used since his retirement 10 years earlier.

The two-hour commute from Richmond had become too difficult.

Nominated by President Nixon, Powell had a reputation as a conservative when he came to an ideologically divided court.

But to many who watched his 15 years as a justice, he proved himself a captive only of the law.

"He was a traditional lawyer ... he reasoned from the bottom up," John C. Jeffries, his biographer and former law clerk, said Tuesday. "He developed a habit of listening and tried to make up his mind slowly."

Chief Justice William Rehnquist called Powell the embodiment of judicial temperament, "receptive to the ideas of his colleagues, fair to the parties to the case, but ultimately relying on his own seasoned judgment."

Powell spoke for the court when, in 1982, it ruled for the first time that retarded people in state institutions have a right to be safe and free from bodily restraints.

In 5-4 votes in which he was pivotal for the majority, Powell held:

-During the Nixon administration, that presidents enjoy "absolute immunity" from being sued for monetary damages if their misconduct in office was within their official duties.

-That consenting adults have no constitutional right to private homosexual conduct. Powell said after his retirement that he "probably made a mistake" with his vote in that 1986 Georgia sodomy case.

-That medical school applicant Allan Bakke suffered unlawful discrimination because he was white. "Preferring members of any one race group for no other reason than race or ethnic origin is discrimination for its own sake," Powell wrote in the 1978 opinion. "This the Constitution forbids."

But while forbidding discrimination based solely on race, the decision also upheld the use of some race-conscious criteria in medical school admission policies. That became the legal basis for racially sensitive affirmative action programs that were more widely applied in society and continue to be challenged.

"He thought it ought to be done as carefully as possible, as an interim measure looking toward a truly colorblind society," said Jeffries.

A wealthy Virginian, Powell accepted his 1971 court nomination reluctantly, saying he was too old, at 64. And he expressed "deep personal misgivings about whether I will like it. I rather suppose I won't."

Nixon told him he had a duty to serve and Powell relented.

Nixon wrote Powell a "Dear Lewis" letter when the justice retired in 1987, recounting his comment during the nomination that "10 years of Lewis Powell on the court was worth 20 years of anyone else."

Sen. Patrick Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, said Powell was in many ways a model justice. "His influence was measured not in decibels but in the hard currency of character."

Powell was criticized through the 1970s for belonging to two white-only organizations, the Commonwealth Club and the Country Club of Virginia. He quietly withdrew both memberships in 1980.

"He was probably the last of the courtly, Southern gentlemen who served as justices, (who) saw himself as part of that social group which had a certain kind of noblesse oblige," said Mark Tushnet, a Georgetown University associate law dean who clerked for Justice Thurgood Marshall when Powell was on the court.

"He was faced on one side by people who wanted to push the court in a conservative direction rather rapidly and on the other side by people who wanted to preserve the Warren Court's liberalism. He stood between those two."

Powell was hospitalized in 1991 for a fainting spell and irregular heartbeat; he also had hip-replacement surgery that year. A year earlier, he had said his health was holding up better than he expected but added, "Let's face it, I've outlived my generation. Most of the friends I have held dear through my life are dead now."

Powells' wife, Josephine, died in 1996. They had four children.