It is striking to read the detailed account of the Supreme Court's wrestling with Dun & Brads treet, Inc. v. Greenmoss Builders, Ine) over a two-year period that came just a few years after I had the honor of clerking for Justice Lewis F. Powell, Jr. The unpacking of this story by Lee Levine and Stephen Wermiel is invaluable because it so well illustrates the ways in which three important Justices did their jobs in the 1970s and 1980s.2 We see Justice Brennan working strategically to reinforce and extend his earlier opinion in New York Times Co. v. Sullivan,11 seeking ways to cobble together five votes from a Court that is far different from the Warren Court he once knew. We see Justice White, mercurial and idiosyncratic - first voting with Justice Brennan, then flirting with joining Justice Powell in narrowing the scope of Gertz v. Robert Welch, Inc.* and ultimately filing a concurrence in the judgment calling for both Sullivan and Gertz to be overruled.5 And we see Justice Powell, the classic moderate centrist, seeking to adjust the constitutional rules so as to give what he considered sufficient respect to competing values - here, the competing values of protecting freedom of speech and preserving the States' ability to use defamation law to protect reputations.
Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell's approach to constitutional jurisprudence, particularly in First Amendment cases - an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.6
I. JUSTICE POWELL AS A CENTRIST
It is hardly a great insight to note that Justice Powell was a centrist - though in his time on the Court the ideological divides were not so clear and other Justices - Stewart, Stevens, White, and Blackmun - each found themselves taking both "liberal" and "conservative" positions in various cases. What is distinctive about Justice Powell is not just that he shifted back and forth between liberal and conservative majorities but that he nearly always sought to find a way to avoid, or minimize, the choice by crafting a middle position.
Perhaps the most famous example of this approach was Powell's opinion in Board of Regents of the University of California v. Bakke.7 In that much-criticized but still influential opinion, he voted to invalidate a university's affirmative action program that employed a quota or goal concerning the percentage of the class that should be made of minority students.8 But he simultaneously endorsed consideration of race as one factor in the overall individualized determination about each applicant.9 This splitting of the difference was designed to avoid the overt categorization of people by their race while still allowing some play in the joints for the reality that diversity in education would not be achieved without some awareness of race in the admissions process. It allowed the Court to avoid shutting down diversity efforts while recognizing at the same time how constitutionally problematic it is for the State to favor and disfavor people based on race.
The Bakke opinion was adopted as the model for affirmative action programs across the country for an entire generation. And it was adopted by Justice Powell's intellectual heir on the Court, Justice Sandra Day O'Connor, when she wrote the majority opinion in Grutier v. Bollinger10 upholding the affirmative action program of the University of Michigan Law School.11 As I write this piece, the Bakke/Grutter era may be about to come to an end as a Court that no longer includes Justice O'Connor is revisiting these questions in Fisher v. University of Texas at Austin}2 But I expect Justice Powell always foresaw the day when his compromise approach would no longer carry the day. Indeed, he probably welcomed it. In any event, what is clear is that Justice Powell's Bakke opinion typifies his quest for rules that "split the difference" between competing considerations - including (as Greenmoss illustrates) in First Amendment cases. …