Lewis Franklin Powell Jr

Article excerpt

He will probably go down in history as a moderate's moderate, a Nixon-appointed Supreme Court justice who, true to his patrician Richmond background, brokered one thoughtful, pragmatic court compromise after another. When the news arrived that Lewis Powell had died at the age of 90, the media and others praised him accordingly, calling him a "voice of moderation," a "balancer and compromiser, a political moderate with an aversion to heated rhetoric and doctrinal rigidity," and a "consensus builder."

In fact, while the courtly Mr. Powell was many things - an honored student at Washington & Lee University and Harvard Law School, an accomplished lawyer, decorated World War II soldier, civic leader in Richmond, husband and father - he was hardly a model of compromise. For better or worse, he took sides on some of the most contentious issues of the day and in many cases cast the deciding vote.

He opposed the Nixon administration's wiretapping of domestic groups without court approval and voted to force Mr. Nixon to give up the Watergate tapes. He sided with the high-court majority that established a constitutional right to abortion. He struck down New York's practice of sending public school teachers to private schools to teach disadvantaged students. He routinely upheld the constitutionality of the death penalty and rejected claims that there was a right to privacy for homosexual conduct. He wrote that forced busing impaired the liberty and privacy of students, black or white.

Nor was his brand of compromise necessarily a matter of constitutional or statutory interpretation. By abruptly discovering a constitutional right to abortion in Roe vs. Wade, he helped set a precedent that almost no one - whether for or against abortion - can hold up as a model of sound jurisprudence. It was a political decision better left to those whom the Constitution assigns such duties, but Mr. Powell strongly reaffirmed Roe in later decisions.

In retirement, he also backed away from politically incorrect decisions he made on capital punishment and homosexual rights. His vote on the latter, an anti-sodomy case from Georgia known as Bowers vs. Hardwick, was probably inconsistent with his vote in Roe, he said. But it was, however unintentionally, consistent with the Constitution. …