Lewis F. Powell Jr.

During World War II, he first tried to join the US Navy but was rejected because of poor eyesight, so he joined the US Army Air Forces as an Intelligence officer. After receiving his commission as a First Lieutenant in 1942, he completed training at bases near Miami, Florida and Harrisburg, Pennsylvania. He was assigned to the 319th Bombardment Group, which moved to England later that year. He served in North Africa during Operation Torch and was later assigned to the Headquarters of the Northwest African Air Forces. There, Powell served in Sicily during the Allied invasion of Sicily.

In August 1943, he was assigned to the Intelligence staff of the Army Air Forces in Washington, D.C. Slated for assignment as an instructor at the facility near Harrisburg, he worked instead on several special projects for the AAF headquarters until February 1944. He was then assigned to the Intelligence staff of the Department of War and then the Intelligence staff of United States Strategic Air Forces in Europe. Powell was assigned to the Ultra project, as one of the officers designated to monitor the use of intercepted Axis communications. He worked in England and in the Mediterranean Theater and ensured that the use of Ultra information was in compliance with the laws and rules of war, and that the use of such information did not reveal the source, which would have alerted that the code had been broken. He advanced through the ranks to Colonel, and received the Legion of Merit, Bronze Star Medal, and French Croix de Guerre with bronze palm. He was discharged in October 1945.[10]

In 1941, Powell served as Chairman of the American Bar Association's Young Lawyers Division.[11]

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 Andrews Kurth. Powell practiced primarily in the areas of corporate law especially in the field of mergers and acquisitions and in railway litigation law.

From 1961 to 1962 Powell served as Chair of the American Bar Association's Standing Committee on the Economics of Law Practice , which later evolved into the ABA Law Practice Division. During his tenure as Chair of the Committee, The Lawyers Handbook was first published and distributed to all attorneys who joined the ABA that year. In its preface, Powell wrote, "The basic concept of freedom under law, which underlies our entire structure of government, can only be sustained by a strong and independent bar. It is plainly in the public interest that the economic health of the legal profession be safeguarded. One of the means toward this end is to improve the efficiency and productivity of lawyers."[12]

From 1964 to 1965 he was elected President of the ABA. 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. From 1964 until his court appointment in 1971 he was a board member of Philip Morris and acted as a contact point for the tobacco industry with the Virginia Commonwealth University. Through his law firm, Powell represented the Tobacco Institute and various tobacco companies in numerous law cases.

Powell played an important role in local community affairs. From 1951 he served on the Richmond School Board and was its Chairman from 1952 to 1961. 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 the case of racial integration in Brown v. Board of Education. Powell's law firm represented one of the defendant school districts in the case which 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 fostered a close relationship with many black leaders, such as civil rights lawyer Oliver Hill, some of whom offered key support for Powell's Supreme Court nomination. In 1990, Powell swore in Virginia's first black governor, Douglas Wilder.

From 1961 to 1969, Powell served on the Virginia Board of Education; he was Chairman from 1968 to 1969.[13]

On August 23, 1971, prior to accepting Nixon's nomination to the Supreme Court, Powell was commissioned by his neighbor, Eugene B. Sydnor Jr., a close friend and education director of the US Chamber of Commerce, to write a confidential memorandum for the chamber entitled "Attack on the American Free Enterprise System," an anti-Communist and anti-New Deal blueprint for conservative business interests to retake America.[14][15] It was based in part on Powell's reaction to the work of activist Ralph Nader, whose 1965 exposé on General Motors, Unsafe at Any Speed, put a focus on the auto industry putting profit ahead of safety, which triggered the American consumer movement. Powell saw it as an undermining of the power of private business and an ostensible step towards socialism.[14] His experiences as a corporate lawyer and a director on the board of Phillip Morris from 1964 until his appointment to the Supreme Court made him a champion of the tobacco industry who railed against the growing scientific evidence linking smoking to cancer deaths.[14] He argued, unsuccessfully, that tobacco companies' First Amendment rights were being infringed when news organizations were not giving credence to the cancer denials of the industry.[14]

The memo called for corporate America to become more aggressive in molding society's thinking about business, government, politics and law in the US. It inspired wealthy heirs of earlier American industrialists such as Richard Mellon Scaife, the Earhart Foundation (whose money came from an oil fortune), and the Smith Richardson Foundation (from the cough medicine dynasty)[14] to use their private charitable foundations (which did not have to report their political activities) to join the Carthage Foundation (founded by Scaife in 1964)[14] to fund Powell's vision of a pro-business, anti-socialist, minimally government-regulated America based on what he thought America had been in the heyday of early American industrialism, before the Great Depression and the rise of Franklin Roosevelt's New Deal.

The Powell Memorandum thus became the blueprint for the rise of the American conservative movement and the formation of a network of influential right-wing think tanks and lobbying organizations, such as The Heritage Foundation and the American Legislative Exchange Council (ALEC) as well as inspiring the US Chamber of Commerce to become far more politically active.[16][17] CUNY professor David Harvey traces the rise of neoliberalism in the US to this memo.[18][19]

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. He named consumer advocate Nader as the chief antagonist of American business. Powell urged conservatives to undertake a sustained media-outreach program; including funding neoliberal scholars, publishing books and papers from popular magazines to scholarly journals and influencing public opinion.[20][21]

This memo foreshadowed a number of Powell's court opinions, especially First National Bank of Boston v. Bellotti, which shifted the direction of First Amendment law by declaring that corporate financial influence of elections by independent expenditures should be protected with the same vigor as individual political speech. Much of the future Court opinion in Citizens United v. Federal Election Commission relied on the same arguments raised in Bellotti.

Though written confidentially for Sydnor at the Chamber of Commerce, it was discovered by Washington Post columnist Jack Anderson, who reported on its content a year later (after Powell had joined the Supreme Court). Anderson alleged that Powell was trying to undermine the democratic system; however, in terms of business's view of itself in relation to government and public interest groups, the memo could be alternatively read to simply convey conventional thinking among businessmen at the time. Interpreted in this way, the primary contribution of the memo could instead be read as its emphasis on institution-building, particularly updating the Chamber's efforts to influence federal policy. Here, it was a major force in motivating the Chamber and other groups to modernize their efforts to lobby the federal government. Following the memo's directives, conservative foundations greatly increased, pouring money into think-tanks. This rise of conservative philanthropy led to the conservative intellectual movement and its increasing influence over mainstream political discourse, starting in the 1970s and '80s, and due chiefly to the works of the American Enterprise Institute and the Heritage Foundation.[22]

In 1969, 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.[23] 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, like now, heard very few corporate law cases. Powell feared that would place him at a disadvantage and make it unlikely that he would be able to influence his colleagues.

Nixon nominated Powell and William Rehnquist to the Court on the same day, October 21, 1971.[24] Powell took over the seat of Hugo Black after being confirmed by the Senate 89-1 on December 7, 1971 (the lone "nay" came from Oklahoma Democrat Fred R. Harris). 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 said, "No, it is the worst day of my life. I am about to cry."[25]

Lewis Powell served from January 7, 1972 until June 26, 1987, when he retired from the Court.[26]

Powell was among the 7–2 majority who legalized abortion in the United States in Roe v. Wade. Powell's pro-choice stance on abortion stemmed from an incident during his Richmond law firm, when the girlfriend of one of Powell's office staff bled to death from an illegal self-induced abortion.[27]

In Coker v. Georgia, a convicted murderer escaped from prison and in the course of committing an armed robbery and other offenses, raped an adult woman. The State of Georgia sentenced the rapist to death. Justice Powell, acknowledging that the woman had been raped, expressed the view that "the victim [did not] sustain serious or lasting injury"[28] and voted to set the death penalty aside. In that same case, Powell also wrote to rebuke the plurality's statement that "for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair,"[29] instead stating that "[s]ome victims are so grievously injured physically or psychologically that life is beyond repair."[30]

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, joined by three other 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 "strict scrutiny" to 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 for preclearance of 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 J. Brennan Jr. (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.[31] From his days in counterintelligence during World War II, Powell believed in the need for government secrecy and urged the same position 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.[32]

Powell joined the 5–4 majority in Plyler v. Doe that a Texas law forbidding undocumented immigrant children from public education was unconstitutional.[33] Powell had a fairly conservative record in deciding cases, but joined the Court's four liberal Justices to declare the law unconstitutional.

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, Michael W. Mosman, 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 sodomy law. However, he, in a concurring opinion, expressed concern at the length of the prison terms prescribed by the law.[34] 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.[35]

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. In an interview with his biographer, he even stated that he would abolish the death penalty altogether.[36]