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Surprised Nixon : Centrist Justice Wielded Power on Split Court

June 27, 1987|DAVID LAUTER | Times Staff Writer

WASHINGTON — On a chilly January day two years ago, Supreme Court Justice Lewis F. Powell Jr. announced that he would be entering the Mayo Clinic to undergo cancer surgery. For the next 2 1/2 months, on one controversial case after another until Powell returned to work, the nation's highest court was deadlocked.

Now, Powell's decision to retire for reasons of age and health means that, for as long as his seat remains unfilled, the deadlock is likely to return.

And the stalemate illustrates a paradox about Powell's 15 1/2-year career on the court--a paradox that points to a lesson for President Reagan and congressional Democrats as they square off over selection of his successor.

Although he was nominated by President Richard M. Nixon as part of an effort to shift the balance away from the liberal decisions of the Earl Warren court, Powell proved to be a moderate who supplied the pivotal vote against doctrinaire conservative positions on a series of explosive issues.

On abortion, for example, Powell became a key fifth vote in repeatedly striking down state restrictions. On affirmative action, he led the way as the court haltingly moved toward acceptance of racial preferences to compensate for past discrimination. On church-state relations, he provided the swing votes that blocked government aid to parochial schools and attempts in some states to mandate silent prayers for students.

Reagan is widely expected to seek a nominee who will help reverse many of those positions.

Yet Powell's record offers graphic evidence of the difficulty presidents--and members of Congress--have in influencing future Supreme Court decisions through their roles in selecting justices.

No Guarantees on Justices

"You get no written money-back guarantees with a Supreme Court appointment, and one of the good illustrations of that is Justice Powell, who was appointed by a President who went out of his way to change the court," said Supreme Court scholar Jesse H. Choper, dean of the University of California Law School. Choper added that "this Administration has done pretty well" so far in picking justices in its own image.

"Even a 'strong' President determined to leave his mark on the court . . . is apt to be only partially successful," now-Chief Justice William H. Rehnquist said in a 1984 speech. "Institutional pressures" within the court "weaken and diffuse the outside loyalties of any new appointee," he said.

Powell surprised many conservatives and Nixon himself. His record "has not been what Nixon predicted when they put him on," said University of Virginia law professor A.E. Dick Howard, a long-time acquaintance of Powell.

'He Would Snap at You'

"If you pushed Powell too hard, he would snap back at you," said Burt Neuborne, who argued frequently before Powell as legal director of the American Civil Liberties Union. "He mistrusted attempts to solve social problems that didn't recognize that both sides had something very important to protect."

For much of his term, Powell's crucial fifth vote on a sharply divided bench gave him tremendous power and made him one of the most influential justices of his era.

"If one could draw a picture of the way the court operated, you would see eight justices looking at Justice Powell and asking: 'Is it constitutional or isn't it,' " Choper said.

Despite his tremendous authority on the court, Powell's lack of sharply defined ideology resulted in there being few legal doctrines bearing his name. "If you're a committed centrist on a tightly balanced court, you're going to be a very powerful man. But precisely because you are a centrist, your votes are going to cancel out a lot," Neuborne said. "(Powell) was probably the most powerful treader of water in the court's history."

'Rudderless' Court

Powell's tendency to make fine distinctions among cases was a major cause of the high court's reputation for lacking a clear sense of direction, for being "rudderless." He "was largely responsible for the way the court (in recent years) sort of went on a broken path," one scholar said.

But Powell rejected criticism of the court's sometimes wandering ways. "I have often wondered whether those who decry the 'rudderless court' would like to be judged by a different kind of court . . . that decided cases according to some consistently applied philosophy or 'theme,' rather than by the facts of (the) case and the applicable law," he wrote in a 1980 article.

Lawyers arguing before the court, knowing Powell's key role, often said that they would pitch their arguments and write their briefs to appeal to him. "You would be going for two or three people in the middle, and Powell was the key," said Washington lawyer Benjamin W. Heineman Jr.

Similarly, "If you were a justice and you were writing a case on which the votes were uncertain, it would often be Powell you were writing for," said Heineman, who was a clerk for the late Justice Potter Stewart.

'Would This Fly?'

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