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VOICES : For the Majority

May 03, 1987|David M. O'Brien | David M. O'Brien is a professor at the University of Virginia and author, most recently, of "Storm Center: The Supreme Court in American Politics " (Norton)

CHARLOTTESVILLE, VA. — The most divisive issues of social policy decided by the Supreme Court come down on a 5-to-4 vote, with Justice Lewis F. Powell Jr. often casting the deciding vote. In upholding capital punishment two weeks ago, he wrote for a bare majority, dismissing racial bias as an "irrelevant factor" though blacks who murder whites are 11 times more likely to suffer the death penalty than whites who kill blacks. Powell also holds pivotal votes on abortion, affirmative action, homosexual rights and some criminal justice matters.

At the fulcrum of power within the court, Powell's views are more influential than retired Chief Justice Warren E. Burger's or successor William H. Rehnquist's. Even William J. Brennan Jr.--the most liberal and skilled consensus builder who, Powell noted during a recent interview in his chambers, "is going down in history as one of the great justices of this court"--has less influence across the range of issues.

Powell went to the court reluctantly in 1972, after being pressured by Richard M. Nixon. At 64 and a wealthy senior partner in a powerful Virginia law firm, as well as a former president of the American Bar Assn., he "had no desire to be judge."

On the bench, Powell maintains a moderate conservative position, less ideological than others and more geared toward the governing process than particular results. One of his first opinions that "surprised some people," he proudly recalls, rebuffed Nixon's wiretapping of civil-rights activists. He later joined the abortion ruling and stood firm against pressure to overturn it. Looking frail and gaunt, he conceded that "If the personnel of this court changed, it's entirely possible that (it) would be reversed."

Because he so often casts a crucial vote, Powell is frequently described as a "swing" voter. Last term, the justices split 5 to 4 in 46 cases and he was most often in the majority (35 times)--the conservatives winning three times as often as the liberals. Yet Powell denied that he "rolls with the court." He is, in fact, fiercely independent, a jurist with an abiding faith in precedent and judicial self-restraint.

He has no truck with New Right conservatives, and openly rejects the Reagan Administration's call for a return to a "jurisprudence of original intentions." "The Constitution is a document framed in language that requires interpreting the critical provisions of it," he explained. "The First Amendment, the Fourth, the Fifth, the Sixth and the Eighth all require interpretation of language that's nowhere defined in the Constitution." "Few," he added, "will be influenced by any edging that would return to original intent."

At the same time, Powell is a force in limiting Warren court rulings that expanded the rights of the accused--he distrusts mechanically applied guidelines for police procedures. Watershed rulings like Miranda, however, he emphasized have been "meticulously upheld."

As a result, liberals attack him for diluting rights of the accused and conservatives for not going far enough. But key to his position is his "gift of moderation," as Harvard professor Paul A. Freund put it. Almost 40 years of practicing law, Powell explained, "made me oriented perhaps more than some of the other justices toward deciding each case on the basis of its own merits." That case-by-case approach puts him at storm center.

More than a centrist, Powell is the court's conscience, balancing individual and societal interests. In the landmark ruling on affirmative action in universities, the justices split with Powell in the middle. Given the tie-breaking vote, he announced the decision, though no other justice agreed with his reasoning, allowing affirmative action (but not quotas) to ensure "a diverse study body."

Powell's independence and central role is exemplified by his opinion last year upholding Georgia's sodomy law. When the justices discussed the case in private conference, Powell again held the crucial vote. Although he indicated he might go along with striking down the law, Justice Harry A. Blackmun's draft opinion proved too sweeping in its use of precedents for protecting personal privacy. Powell said he was "troubled by that" and switched his vote. Blackmun wrote for four dissenters rather than for a majority.

Powell insisted that the case was more politically symbolic than legally important. The defendant had not been tried and convicted--which could have meant 20 years imprisonment. So, Powell explained, there was "no threat to him and the law was not being enforced, hadn't been enforced since the late 1930s." Though he says sodomy laws "are moribund," Powell did not want "to decide the case in the abstract." For that reason, he switched votes and crafted an opinion saying penalties for sodomy might constitute "cruel and unusual punishment."

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