Associate Justice Lewis Powell, Jr. discusses some of his most controversial cases, including those dealing with executive privilege, corporal punishment and affirmative action.
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JUSTICE F. POWELL, JR: Well, the Nixon tapes case was a hard case, simply because of the implications of a controversy with the President of the United States that implicated him personally in the most direct way. It led undoubtedly to his resignation or threatened impeachment.
BILL MOYERS: In this hour, a conversation with Supreme Court Justice Lewis F. Powell Jr. I’m Bill Moyers.
BILL MOYERS: When President Richard Nixon nominated Lewis Powell Jr. To the Supreme Court in 1971, he and the nation must have thought that the court was getting a true southern conservative. Powell, then 64, had been a successful corporate lawyer, president of the American Bar Association, and a pillar of the social and civic life of Richmond, Virginia.
Yet once on the bench, Justice Powell has proved, as is so often the case, to be his own man. Hard to predict, bringing a complex mind to bear on complex issues from affirmative action to the death penalty, Justice Powell has not always fitted the stereotype of the southern conservative in his legal opinions. All who know him personally speak of him as having the best qualities of a true southern gentleman, considerate, sensitive, and courtly.
BILL MOYERS: Lewis F. Powell Jr. Was born in Suffolk, Virginia, southeast of Richmond. In those pre-World War I days, even little boys were sometimes clad in dresses. His formative years, however, were spent in Virginia’s capital, Richmond, where he attended McGuire Prep School, playing first base for the school’s baseball team. As he probably remembers, he was the team’s leading hitter.
After McGuire, Powell studied at Washington and Lee University in Lexington, Virginia, earning a bachelor’s degree, magna cum laude, in 1929, then a law degree two years later. From Washington and Lee, he went to Harvard Law School for a master’s degree in law. The mid ’30s saw him as a young lawyer, getting a formidable legal career as a litigator in general civil practice.
BILL MOYERS: World War II interrupted that career. He served as a combat and staff intelligence officer with the US Army Air Force in both the North African and European theaters of operation. He came out a full colonel. At war’s end, he rejoined his law firm in Richmond. In addition to his practice, he served as president of the Richmond Public School Board and then the Virginia State Board of Education.
In the face of intense pressure for massive resistance to desegregation, Powell advocated keeping the schools open. His voluntary efforts for legal rights for the disadvantaged led President Lyndon Johnson to appoint him to the National Advisory Committee on legal services to the poor. Powell’s roots run deep in Virginia. He was active in revising the state’s new constitution, adopted in 1970. Earlier this year, his alma mater, Washington and Lee University, honored him at a ceremony where his portrait was unveiled by two of his grandchildren.
JUSTICE F. POWELL, JR: Returning to W and L is always a joy. I spent six of the happiest years of my life here. Today, you have done me the honor of a portrait. I’m proud to have had it unveiled by two of my grandchildren. Awfully glad you all didn’t fumble the ball over there.
BILL MOYERS: You do not need to be around Justice Powell long to realize that, in addition to legal career and his varied civic activities, he is, without question, very much a family man. When we met for this interview at the Supreme Court, Justice Powell surprised me by bringing not only a copy of the Constitution of the United States, but one of the Soviet Union, as well.
JUSTICE F. POWELL, JR: I thought you’d be interested in it. It has 174 articles.
BILL MOYERS: Constitutions of the Union of Soviet Socialist Republics. 1977, it was adopted. Now, what intrigues you about it? Why did you bring this?
JUSTICE F. POWELL, JR: I thought about its length in the first place. It has 174 articles. Our Constitution has seven articles, plus the Bill of Rights, plus the amendments. But the Bill of Rights added 10, really, as a basic part of the original Constitution. Then we had the Civil War amendments. My Virginia friends would say I should’ve said the war between the state amendments. I’ll tell you what Griff Bell used to say. Down in Georgia, they refer to that war as the War of Northern Aggression. But in any event, these are sections of the Soviet Constitution that deal with what we would call human rights and basic liberties.
BILL MOYERS: There’s a point to all this. Read them to me.
JUSTICE F. POWELL, JR: In accordance with the interests of the people and in order to strengthen the development of the social system, citizens of the USSR are guaranteed freedom of speech, freedom of the press, freedom of assembly, freedom of meetings, street processions, and demonstrations. And if I go on a little bit, citizens of the USSR are guaranteed freedom of conscience — that is, the right to profession or not to profess any religion — and to conduct religious worship or atheistic propaganda. Citizens of the USSR are guaranteed inviolability of the person. No one may be arrested, except by court decision or on the warrant of a prosecutor, and so on.
BILL MOYERS: Sounds remarkably like the United States Bill of Rights.
JUSTICE F. POWELL, JR: You’d think they borrowed it.
BILL MOYERS: So what’s the difference, other than the fact that it’s a closed system? What’s the difference?
JUSTICE F. POWELL, JR: The difference is that the judicial branch of the Soviet Union — if you can call it a branch — has no authority to enforce those rights. The Supreme Soviet is the premium authority. And so if Miranda for example, in the Soviet Union felt that he had been imposed upon, or the woman who had been raped and who ended up as one of the plaintiffs in Roe v. Wade had tried to get it to court to set these rights. And a judge would have hesitated a long time before he proclaimed that the rights had been violated in some way that required redress.
BILL MOYERS: So the courts are not independent there.
JUSTICE F. POWELL, JR: They’re not independent, and it’s fair to say that this is not true alone of the Soviet Union or perhaps indeed of the Communist Bloc. I certainly am not familiar with the systems in many of the other countries. I know the English system very well, and while they do not have a written constitution, the English tradition that we inherit that goes back, as you know, to Magna Carta and the English Bill of Rights and the habeas corpus writ, so that without a constitution, most of our rights still exist in England. But Parliament could change them any day it wants to. And that’s the difference.
But coming back to your question, the courts of the Soviet Union have no authority to enforce a constitution.
BILL MOYERS: It’s not that this court has troops it can send to compel obedience to your decrees. What is it? What’s the source of the court’s power in our society?
JUSTICE F. POWELL, JR: It’s not easy to define. I suppose all one can say, really, is that over the period of all of these decades now, two centuries, uniformly, there has been a high degree of respect for the judicial branch at the state level and also at the federal level. And in the end, the people make possible the authority that the courts in our country have.
BILL MOYERS: They give it the moral authority that it possesses.
JUSTICE F. POWELL, JR: They do. And our Constitution purports to express the will of the people. Not the will of a king, but the will of the people.
BILL MOYERS: Not the will of a party.
JUSTICE F. POWELL, JR: Not the will of a party.
BILL MOYERS: It’s those three branches of government that, no matter how inefficient the system may be, keeps each one a check on the other.
JUSTICE F. POWELL, JR: Yes. And I think it’s fair to say, Bill, that I think the President and the Congress feel a high degree of responsibility to protect and preserve the Constitution.
BILL MOYERS: There’s always a little poaching going on between the executive and the legislature, the legislature and the courts, the courts and the — in fact, a lot of folks in the state legislatures and the Congress believe that your court poaches all the time.
JUSTICE F. POWELL, JR: Well, one of the problems that often is perceived about the court is the fact that sometimes one justice appears to be making the decision. You have a five to four decision in a very important case. And that’s part of our system is often misunderstood, not only in our country, but particularly abroad.
In some of the countries and some of the Western democracies, open dissent is not permitted. There may be dissents, but once the decision is made, the decision is reported without dissent. But, in my view, the dissents have a very useful purpose.
BILL MOYERS: When you object to a majority opinion, you write a dissent. What purpose does that serve?
JUSTICE F. POWELL, JR: I think it serves basically and initially the purpose of keeping the majority honest, in a broad sense of that term. If you were writing in a court opinion — this doesn’t happen very often, perhaps, but if it were a close case, and you were writing the court opinion, and you know perfectly well that there’s going to be a scalding dissent — you’re all the more careful as to what you say and what you decide.
So the dissent serves a very useful purpose in that respect. And also, as you know and historians who watch the court, of course, know, a dissenting opinion often may become the majority opinion a few years or a good many years later.
BILL MOYERS: Isn’t there something to the case, Mr. Justice, that the court has been a very conservative instrument in our society? That it’s never gotten very far out in front, that it upheld in the Dred Scott decision the belief that the law that blacks were property and Plessy v. Ferguson, 1896, it upheld separate but equal. It wasn’t until the ’54 decision on Brown v. Board of Education that the court really began to get out in front of society. Hasn’t it been a very conservative instrument overall in our society?
JUSTICE F. POWELL, JR: I would agree with that. And I think the opinions that often are viewed as more liberal than conservative, in the end, actually are conservative.
BILL MOYERS: How?
JUSTICE F. POWELL, JR: I think in the sense that the public generally has an expanding or developing view of right and wrong in terms of what people are willing to think, and willing to do, and willing to accept.
BILL MOYERS: And the court knows not to get too far in front of them.
JUSTICE F. POWELL, JR: I don’t think we ever think about it that, Bill.
BILL MOYERS: You don’t?
JUSTICE F. POWELL, JR: No. I can’t say that I’ve ever had it discussed, and I don’t think that I have thought of that. I do think we are reluctant to overrule an act of Congress or to hold it invalid — not overrule it, but to hold an act of Congress invalid.
BILL MOYERS: Why?
JUSTICE F. POWELL, JR: Well, that’s a separate branch of government, and the representatives in the Congress are elected by the people. And presumptively their actions are constitutional. So I think I speak for all of us. We’re reluctant to invalidate an act of Congress.
BILL MOYERS: You’re also reluctant, are you not, to overturn precedents of previous courts, the decisions made by this body 20 years ago, 50 years ago, 100 years ago. Why is that?
JUSTICE F. POWELL, JR: Well, the doctrine is referred to as stare decisis that we follow decisions or precedents. And that doctrine is basic to a system of law because otherwise it could be changed every time the composition of the court changes. And I personally have a very strong feeling that the doctrine of stare decisis is essential to our system.
BILL MOYERS: Why?
JUSTICE F. POWELL, JR: Stability, a continuity, a recognition that the rights and privileges of our citizens don’t change because there’s a new forum on the court, a new majority on the court. When I was up for confirmation, I would go about deciding a case. And I had the experience of practicing law a long time. And I think I gave a simple-minded answer. I said, I will decide each case on the basis of the applicable law and the facts of the case.
Well, I realized in retrospect that was quite simple minded. But I still approach each case on a case-by-case basis, obviously with the Constitution in the forefront, if a constitutional question is presented. And as I indicated earlier, I do have a high respect for continuity, evidenced by the doctrine of stare decisis.
BILL MOYERS: Why?
What does it mean, Mr. Justice, to approach it on a case-by-case basis? What are you looking for?
JUSTICE F. POWELL, JR: It depends on the case. If it’s a tax case, what you’re trying to do is to fathom what the Congress intended in the tax code. I don’t know whether you’ve ever seen it or not, but it’s about that thick. And you look at one section, and it refers you to another section, and you look at that second section, of it refers you to two others.
So that’s a matter of statutory construction. You rarely have a constitutional question on a tax code case. On the other hand, if it’s a sweeping provision enacted by Congress with vague language in it that perhaps was result of compromises made by one of the other houses of Congress, we have to try to determine what would have been a rational and reasonable intention for Congress consistent with the Constitution.
Each of us has taken an oath to support the Constitution and laws of the United States. As I think I’ve said publicly, we operate to some extent like nine separate law firms up here, very small.
BILL MOYERS: Nine separate law firms?
JUSTICE F. POWELL, JR: Well, yes. You want to know in what respect?
BILL MOYERS: You bet.
JUSTICE F. POWELL, JR: Well, each of us has his or her own chambers. We have a couple of secretaries and some law clerks and a messenger. And we discussed the cases very fully at conference. Each is sworn to make his own judgment. We take tentative votes at the conference with as full a discussion as any justice wants.
BILL MOYERS: They’re tentative because, until an opinion is written, none of us wishes to commit himself or herself whether or not to agree with it. While we are truly influenced by the views expressed at conference and by the memoranda that are circulated — I’ve written one to the court today, this morning. In the end, we make separate and independent judgments.
BILL MOYERS: What have been some of the most difficult cases for you, personally, that have been decided in these 15 years?
JUSTICE F. POWELL, JR: Well, the Nixon tapes case was a hard case, simply because of the implications of a controversy with the President of the United States that implicated him personally in the most direct way. It led undoubtedly to his resignation or threatened impeachment.
BILL MOYERS: Was that an anguishing decision?
JUSTICE F. POWELL, JR: It was anguishing primarily in my view, Bill, because of the role of the President of United States. It’s a very sobering experience to have to consider even the possibility of ordering the President of United States to do anything. We all have a very high respect for that office, of course. It’s necessary in our system. So it was a sobering experience.
RICHARD NIXON: The easiest course would be for me to blame those to whom I delegated the responsibility to run the campaign. But that would be a cowardly thing to do.
BILL MOYERS: The early ’70s, the time of the White House crimes known as Watergate. A special prosecutor had subpoenaed 64 White House tapes as evidence. Everyone knew they might also be used in impeachment proceedings against President Nixon as well.
RICHARD NIXON: In any organization, the men at the top must bear the responsibility. That responsibility therefore belongs here in this office. I accept it.
BILL MOYERS: What the President didn’t accept was the subpoena for the tapes. Citing executive privilege, he refused to comply. The case that came before the Supreme Court was unique. Would the court order the President to produce the tapes? And how would the President respond? The court answered the first question yes — Richard Nixon must turn over the tapes. And eight hours after learning of the court’s decision, President Nixon announced that he would accept the court’s ruling and comply fully. That decision, and the events that followed, set in motion President Nixon’s resignation.
JUSTICE F. POWELL, JR: The President claimed executive privilege, and we did not brush that aside lightly. We think it is not an absolute privilege, but it was presumptively one that would be recognized. But in the circumstances of this case, where relevant evidence was needed in a criminal prosecution, it was the decision of our court. And we had a precedent for it that I may mention that caused us to conclude that the President of United States was not above the law.
BILL MOYERS: That was a decision in the last century, was it not?
JUSTICE F. POWELL, JR: Yes.
BILL MOYERS: What was it?
JUSTICE F. POWELL, JR: Well Aaron Burr, no friend of Thomas Jefferson’s, although he had been vice president, and Jefferson believed that Burr had been guilty of treason. And John Marshall sat as the district court judge in Richmond, Virginia, to preside over the grand jury, first of all, that was determining whether or not to indict Aaron Burr. And Burr requested that a subpoena be issued directing President Jefferson to produce certain documents. And that subpoena was authorized by John Marshall and served on Thomas Jefferson.
BILL MOYERS: He hated it, too.
JUSTICE F. POWELL, JR: You could believe he hated it. But in the end, we must be grateful to him, because it set a precedent that all of us should bear in mind when you think about this system we have.
BILL MOYERS: Jefferson yielded?
JUSTICE F. POWELL, JR: He yielded, it and the papers were delivered. Burr was indicted, tried, and acquitted.
BILL MOYERS: When you and the other justices were discussing the Nixon case, did you talk about that case?
JUSTICE F. POWELL, JR: Yes, we cited it in the opinion. And perhaps I digress widely when I say I knew about the Aaron Burr case, not only as all of us did from history, but my wife is a lineal descendant of a lawyer named McRae, who was one of the lawyers in the Burr case.
BILL MOYERS: But what would have happened if President Nixon had resisted, refused, rejected the court’s decision?
JUSTICE F. POWELL, JR: We would have had a constitutional crisis beyond imagination. I have a little amusing story that I’ll recite briefly. I met a French lawyer not very long after that who was visiting here, and he asked me the question in somewhat different language than you did, and that is how we would have enforced our judgment. And of course we would have had no way to do it. But, perhaps frivolously, I said, well, we have 40 or 50 police officers here. We could have sent them down Pennsylvania Avenue, and the President had access to the first infantry division, and you know who would have won.
But coming back to the substance, I think the country owes President Nixon a high degree of gratitude for accepting the judgment of the court. He could have caused just a monumental constitutional crisis if he had just said what President Jackson once said — you have your decree, now enforce it. There’s no way we could have enforced it.
BILL MOYERS: What does this say about our system, about the role of this court?
JUSTICE F. POWELL, JR: It says that we have, after 200 years, a rule of law. Not the rule of men, but the rule of law. And the rule of law was created by the people, and the people can change it if they want to.
BILL MOYERS: You think we hold the court in too much awe and majesty, too much reverence?
JUSTICE F. POWELL, JR: I don’t know that I’d use the term reverence, but I do think it’s terribly important for judges to be respected. Otherwise, the law itself would have a hard time — we’d have a hard time enforcing it. I think one of the great things that the Constitution founding fathers did was to provide for life tenure of federal judges. I think I have said publicly that I certainly would not object if there was some age limit imposed on all judges, simply because I think when people live as long as I have, I begin to feel out of touch with reality. And yet —
BILL MOYERS: You mentioned age, Mr. Justice. How old are you now?
JUSTICE F. POWELL, JR: I’ll be 80 in September.
BILL MOYERS: Well, there are four of you on the court now over 75.
JUSTICE F. POWELL, JR: At least four. This is the oldest court, I think, in history of the Supreme Court. Average age.
BILL MOYERS: Now how serious is the possibility of, as you said, getting out of touch with reality? What do you mean by that?
JUSTICE F. POWELL, JR: Well, I have grandchildren, and I sometimes wonder whether they think I’m really out of touch.
BILL MOYERS: But you don’t have to be on the court to have grandchildren think that.
JUSTICE F. POWELL, JR: Perceptions of the world have changed so drastically in so many ways since even when I was in law school. Just law school itself was a very simple place compared to what is now. The courses were so limited compared to what they are today in the law school. I went to W and L Law School. I took two degrees there. I combined the courses. And of course there were no women in the class. When I went on up to Harvard there wasn’t a single woman in the class in Harvard. I graduated up there in 1932.
My daughter went to University of Virginia and graduated in 1972, and she was one of 18 or 20 women in her class of 375. Today at the University of Virginia, and in most of the law schools, 35, 40% of the class are women. And I know from having women law clerks that they make just as good lawyers as men. I’m not catering to the women’s vote. I just know they do.
BILL MOYERS: Has there been a difference on the court with the arrival of the first woman, Justice O’Connor?
JUSTICE F. POWELL, JR: We’ve made the change of — we’ve made it before in anticipation of having a woman on the court that we anticipated and hoped for.
BILL MOYERS: What did you do?
JUSTICE F. POWELL, JR: We removed the Mr. in front of our names, our names in bronze on each of our chamber’s doors. And they used to say Mr. Justice Powell. But now they said —
BILL MOYERS: That’s right. I remember that, when I came from my first visit in 1954 and walked around with the help of a member of the Senate. It said Mr. Justice Black, Mr. Justice Douglas. And now it just says —
JUSTICE F. POWELL, JR: It says Justice. And that change was made before Sandra O’Connor came on the court. We anticipated, we thought it was highly desirable and there were a number of variable women lawyers.
BILL MOYERS: Now, when she argues a case, does she speak as another lawyer or as a woman who’s a lawyer?
JUSTICE F. POWELL, JR: Oh, she’s strictly a lawyer. I can tell you. She’s really a lawyer.
BILL MOYERS: She was the first justice to come to the court in some 30 years directly from a state court, from a state. And you, I think you’re the only justice on the bench now who came right out of private practice, are you not?
JUSTICE F. POWELL, JR: I’m certainly the only one on this court. And I’ve been told that I’m the only once since Brandeis. I’ve never really checked that.
BILL MOYERS: Was it true you’d much rather have been a lawyer than a judge?
JUSTICE F. POWELL, JR: That is true. I never really wanted to be a judge. Many lawyer want to be. But I preferred the vast freedom that a lawyer in private practice has. Perhaps not as great today because the law firms — some of them are so large. But I always felt free as a practicing lawyer. If I didn’t like what was going on my law firm, I’d put my hat on and walk out.
BILL MOYERS: You missed the fellowship and larger life that you had as a lawyer?
JUSTICE F. POWELL, JR: Yes, I did. Although the fellowship here, just within the court, has been very gratifying to me. And, of course, I have a new circle of friends. I know a number of federal judges. And I’ve known them before, but not as intimately as I now know them. But my lifestyle and my interests have changed drastically. But, also, Bill, I was 64 years old, and I thought I was too doggone old to start a new career.
BILL MOYERS: Why do you think President Nixon asked you to serve on the court? You were a Democrat, but a conservative Democrat, as Virginia counts these things. Why do you think he asked you?
JUSTICE F. POWELL, JR: One of his campaign promises was that he was going to put a Southerner, a conservative Southerner on the court. And he nominated first of all Clement Haynsworth. I’m glad to say publicly that I think Clement Haynsworth was eminently qualified to serve on this court. I knew him very well. Every past president of the American Bar Association except one endorsed him strongly. The American Bar Association committee endorsed him. But, anyway, he would not confirm. President Nixon then nominated a man named Caswell, whom I did not know and do not know.
BILL MOYERS: Harold Caswell.
JUSTICE F. POWELL, JR: Yes. And he was not confirmed. And if he was going to implement his promise to put a Southerner on the bench, he had to find one. And how he found me, I don’t know. But he did.
BILL MOYERS: You really don’t?
JUSTICE F. POWELL, JR: No.
BILL MOYERS: Did he call you himself?
JUSTICE F. POWELL, JR: If you really want to get into it, I was in —
BILL MOYERS: It’s just interesting to me how fate gets decided.
JUSTICE F. POWELL, JR: Well, I think it was mostly accidental, but I had been told by Senator Burr — as you noted, I was a conservative Virginia Democrat. I never voted Republican in the state. I voted Republican when I wanted to in national elections. But, anyway, I always supported the Byrds. The senator called me and said that my name was on a list of people at the White House, and did he want me to try to support me strongly? And I told him, definitely not, that I never wanted to be a judge. I’d been asked before at a different level, not by the President. Anyway, Mr. Mitchell called me — oh, I wrote Mitchell a letter, asking —
BILL MOYERS: Attorney General Mitchell.
JUSTICE F. POWELL, JR: Yes. So when Mitchell called me back, I told him I had not changed my mind and that I did not wish to be considered. When I returned to Richmond that night, about 9 o’clock, I found that the President — the White House has been calling me. And President Nixon was very, very persuasive, as, of course, any man in that White House can be.
BILL MOYERS: What did he say?
JUSTICE F. POWELL, JR: He said that he thought it was my duty to accept the appointment. When the President speaks to you, at least in my case, I told him I would reconsider, and he asked me if I could let him know by 5 o’clock the next day. And I did — exactly 5 o’clock I called Mitchell. But meanwhile I had talked to all four of our children and convened the senior partners at my law firm. And I also talked to my physician. I had fragile health then. I still think I do. In any event, I accepted. And I’m very glad I did.
BILL MOYERS: Out of a sense of duty?
JUSTICE F. POWELL, JR: I don’t know. Mixed reasons. My children all thought I should. My partners said, in effect, in perhaps a less polite language, that they would think less of me unless I did. I think maybe they said you would be an idiot if you turned this down, United States Supreme Court.
BILL MOYERS: Did President Nixon say, Mr. Powell, I need a strict constructionist?
JUSTICE F. POWELL, JR: No. He didn’t ask me any questions about my views. None whatever.
BILL MOYERS: Have you felt a prisoner of your past, a prisoner of being a corporate lawyer, representing powerful interests?
JUSTICE F. POWELL, JR: All of us are products of our past in a general sense, Bill. And yet I’ve tried to divorce myself, to the extent that I can, from all of the influences that might affect my role as a judge. I don’t suggest I’ve succeeded 100%. I try not to be result oriented. I keep reminding myself that that’s not in accord with my oath, not in accord with what I think a judge should do.
BILL MOYERS: Result oriented? You try not to be result oriented?
JUSTICE F. POWELL, JR: Sometimes I would love to see a case decided a particular way, but in light of the relevant law, if it’s a constitutional case or whatever, I convince myself that what I think would be a correct decision is not in accord with the Constitution or the interpretation of statute.
BILL MOYERS: So you vote a certain way because you believe the law requires it, not because it coincides with your personal prejudice?
JUSTICE F. POWELL, JR: Right. I’m very conservative — at least I think I am. And sometimes I think it’s necessary for the court, in light of precedent, for example, to be more liberal than I perhaps am naturally.
BILL MOYERS: What your definition of a conservative?
JUSTICE F. POWELL, JR: It’s hard to define. Generally I suppose it is that one is rooted more deeply in the past than perhaps even in the present and certainly in anticipating the future. I have not felt that I was conservative about individual rights and liberties.
I think I am perhaps a conservative in terms of the business community. I believe so strongly in the free enterprise system that I regret the extent to which it has to be regulated. I recognize that we now have a very, very complex society, and the number of statutes and laws that are on the books now are vast compared to what they were.
When I was in law school, none of the legislation that people now think of important, with the exception of the Interstate Commerce Commission and the Federal Trade Commission, existed. The Securities Acts were passed after I finished law school. The Labor Relations Act, Social Security Act, every major statute that we deal with up here — so that I was educated in a very conservative way compared to what one has had to live with. Of course, during the practice of law, I worked with all of those statutes from time to time.
But all I’m really saying is that I was raised in a very, very different world. When I was in college, I rarely read the newspaper. I was very interested in college, worked hard at my studies, took part in the activities. But the United States was at peace. Of course, the Depression came along before I got out of law school. But I didn’t worry very much about that at that time.
BILL MOYERS: Now you can wake up on a Sunday morning and look at the front page of the Washington Post and find a story about you and how you switched your vote on a case.
JUSTICE F. POWELL, JR: Yes, sometimes to my deep distress. But, anyway, life does change.
BILL MOYERS: Is there a guiding principle that you bring to this case-by-case approach? Is it that you look for what only the Constitution says? Is it you defer to the legislative branch of the local community when you can? Is there some kind of consistent way you look, even though it is on a case-by-case basis?
JUSTICE F. POWELL, JR: I try to familiarize myself very carefully with whatever is relevant to the decision. We read the briefs of counsel. We often have helpful briefs filed by a [INAUDIBLE] counsel. And I’ve always been interested in history, and so I’m interested in history of any case that has a history that’s relevant. I don’t start out with a philosophy as to how a case should be decided.
BILL MOYERS: Let me take one of the now-forgotten cases but was fascinating to me at the time. Created a lot of controversy. It’s died down now, but it was that ’77 case, Ingram v. Wright, junior high students in Florida. Their lawyers brought a case here protesting that they had been spanked and that that was unconstitutional, corporal punishment. You remember that case?
JUSTICE F. POWELL, JR: I do remember.
BILL MOYERS: “He who spares the rod hates his son, but he who loves him is diligent to discipline him.” That’s from the Text of Proverbs, and it pretty much reflected the beliefs of many early God-fearing Americans. From the home, it was an easy jump to the schools. Corporal punishment became an established form of discipline in the classrooms.
By the mid-19th century, however, the practice had become controversial. The controversy continues today, but so does corporal punishment in some schools. A decade ago, a group of Florida junior high school students sued their principal. They had been paddled on several occasions for breaches of discipline. That, the students argued, was cruel and unusual punishment, in violation of the Constitution. School officials said no, that they had the right to paddle.
LEONARD BRITTON, MIAMI SCHOOL SUPERINTENDANT: The corporal punishment, in and of itself — I hope we’re not taking it out of perspective — fits into something else, a larger picture, and that is the ability of a school to maintain discipline and order.
BILL MOYERS: The question eventually reached the Supreme Court. In a five-to-four decision, the court ruled against the students. Paddling was not unconstitutional. Justice Powell wrote the majority decision. Now when you decided that case, was it Lewis Powell, Justice of the Supreme Court, or Lewis Powell, former chairman of the Richmond School Board deciding that case?
JUSTICE F. POWELL, JR: I tried to decide it as Justice of the Supreme Court, but I’m bound to say that having served on the school board, having been interested in education for many years, I was inclined to owe a great deal of deference or recognize that deference was owed to the legislature in Florida that had decided that spanking was appropriate to maintain order and discipline in a classroom from time to time, provided a teacher always consulted the principal first. There were a number of states that had similar legislation.
BILL MOYERS: And you were very careful to write that it must never be excessive.
JUSTICE F. POWELL, JR: I did say that, I hope.
BILL MOYERS: You wrote the opinion for the court, and you said two things that were striking at the time. Corporal punishment has been a commonly accepted means of school discipline since colonial days. In other words, there’s the history.
JUSTICE F. POWELL, JR: That is correct, and that was true at that time. And I think also a substantial number of the states still had state laws authorizing corporal punishment.
BILL MOYERS: And then you said the Eighth Amendment, which says what?
JUSTICE F. POWELL, JR: That’s the cruel and unusual punishment.
BILL MOYERS: — was intended to limit the power of those entrusted with the criminal law function of government to protect those convicted of a crime, and these children had not been convicted of a crime.
JUSTICE F. POWELL, JR: That’s right. I thought then and still think that the Eighth Amendment applies only to crimes. And no crimes had been committed. Sometimes crimes are committed in the classroom, but that was not the situation in this case.
BILL MOYERS: And then you said as long as the punishment was not excessive. As long as it was reasonable, it did not violate due process.
JUSTICE F. POWELL, JR: I knew from my own experience in public education that the public schools are quite public in the sense that PTAs, parent teachers associations, school board meetings that are open to the public, and parents come and testify before a school board — I’ve sat through some long evenings with parents complaining about this or that — that if there were any abuse of this provision of the Florida statute, that pressure immediately or promptly would be brought on the particular school to correct it. And I just thought it was not a situation for the judicial system of our country to become involved in.
BILL MOYERS: You felt it belonged back at the community level.
JUSTICE F. POWELL, JR: That’s right. I did. Perhaps I shouldn’t confess on public television, but I received spankings when I was growing up, and I think they did me no harm.
BILL MOYERS: Mr. Justice, what have been one or two of the hardest cases for you, personally?
JUSTICE F. POWELL, JR: I thought the Bakke case, as I call it, was an extremely difficult decision for the court. I think that’s evidenced by the fact that we had a very fractured court. I ended up writing the controlling decision, but I couldn’t persuade any other justice to join it.
MAN: We’ve decided to follow a series of nationwide protests that challenge the court’s consideration of this course and also to raise the level of consciousness of people about the real issues.
BILL MOYERS: Allan Bakke, a white applicant to medical school, complained that he had been the victim of reverse discrimination by the University of California, which had set aside a fixed number of places for minorities. In other words, a quota for nonwhites. In a two-pronged decision that would challenge Solomon himself, the court ordered Bakke admitted to medical school because it objected to the college’s strict quota system. Justice Powell voted with the five-to-four majority against the quota.
But the court also said that school admission programs that give special advantage to minorities were constitutional. Again, Justice Powell voted with the five-to-four majority. So in the end, Bakke won admission to medical school, but affirmative action programs were also saved. Justice Powell’s decisions were pivotal.
JUSTICE F. POWELL, JR: The opinion I wrote that in effect has been the law was that it was perfectly constitutional for educational institutions to wish to have diversity in their student bodies. And it seemed to us, and certainly to me, that diversity included or should include — particularly in our multiracial, heterogeneous population — representatives from various segments of the population, if they were qualified.
I think our opinion required that the dual system be abolished but that the admissions committee probably could consider race as well as other relevant factors.
BILL MOYERS: So you decided that the quota system was unconstitutional but that it was constitutional to consider race in composing the student body?
JUSTICE F. POWELL, JR: Yes.
BILL MOYERS: Now, weren’t you telling them in effect, the institutions, to do it but don’t just call it what you’ve been calling it?
JUSTICE F. POWELL, JR: No.
BILL MOYERS: You weren’t?
JUSTICE F. POWELL, JR: No. I do think — and I think the majority of the court felt — that universities had a perfectly legitimate, indeed substantial, if not compelling interest in having diversity in the student body in our society. It’s a part of education, to be in class with people with different backgrounds, both in terms of economic or social or ethnic, from different parts of the country. I think that’s a part of being educated.
BILL MOYERS: Why was it so hard for the court to reach that decision? I read that it took eight months for the court to finally issue its opinions and that there was rancor in the court over it.
JUSTICE F. POWELL, JR: If you read the equal protection clause literally, and that, of course, is the way you must start reading it, you could come to the result that often was advocated that race and ethnic background should never be given any consideration whatever under any circumstances.
Perhaps at the time the founding fathers — of course, they didn’t include equal protection, but perhaps even in — what was it, 1868 or whenever — people hadn’t focused on the extent to which this country would become a multiracial society with so many groups.
JUSTICE F. POWELL, JR: If you ever want to check on this, look at the Internal Revenue list of religions. I won’t attempt to say how many, but I think there are 200 or 300 religious groups in the United States, just religious groups.
In any event, the basic analysis, certainly in my opinion, was that the state and the university had a very strong interest in a diverse student body for educational purposes. And most of the universities and colleges already, in recognition of that interest, were considering a variety of factors. I could not approve of having separate admissions committees because I think all applicants should, in a sense and to a degree, compete as they do with other applicants, where you have board scores, and your grade scores, and your experience, and interesting things you’ve done, your personality, your capability to get along with minority groups, possibly. A number of factors should be considered in making decisions as to who should be admitted.
BILL MOYERS: Some quarters praise that decision in a political sense. They said it didn’t apply principle to the law again, but it did solve the problem politically, that it, in fact, saved affirmative action. You think that is what, in fact, happened?
JUSTICE F. POWELL, JR: I don’t think so. I had been trustee of my college, Washington and Lee University. I was also a trustee of Union Theological Seminary, the Presbyterian seminary. And so I’d had some experience at the university level, and as you mentioned earlier, education at the high school and all the way through the State Board of Education.
And it seemed to me that the state had a very legitimate strong interest in a diverse student body. And it also seems to me that, while some form of competition remained — a single admissions committee that could weigh the relevant factors, that the result — to use a phrase that’s often used up here — the remedy of allowing a diverse student body was fairly narrowly drawn.
BILL MOYERS: What does it say that, of the affirmative action cases since Bakke, very few have been decided definitively?
JUSTICE F. POWELL, JR: I think it’s fair to say that we have never agreed precisely on the analytical framework to be applied in affirmative action cases. The problem is complicated by the fact that we also have Title VII, an act of Congress with which you are familiar, that prohibits discrimination on account of race or sex or religion or whatever.
In addition, you have the Equal Protection Clause. This court has never yet decided specifically that both of those — that the analysis applicable to Title VII is identical to the analysis applicable to the constitutional provision. But to come back to your question, I regret to say we have never agreed on a basis of analysis that is satisfactory to all of us.
BILL MOYERS: What about the death penalty cases? Aren’t they particularly hard?
JUSTICE F. POWELL, JR: They are the most difficult of all. I’m glad you mentioned that fact.
BILL MOYERS: And yet, you have voted consistently for the death penalty. Have you not?
JUSTICE F. POWELL, JR: Yes, I have.
BILL MOYERS: On what principle?
JUSTICE F. POWELL, JR: It goes back a long ways. There’s no question about the fact that capital punishment was generally accepted in our country — matter of fact, it really wasn’t questioned at the Supreme Court level until 1972, as I recall, in the Furman case.
BILL MOYERS: 1972, the year the Supreme Court in Furman v. Georgia nullified all death penalty statutes in the United States. In the court’s view, the procedures that judges and juries followed in imposing death penalties were so arbitrary and irrational, they deprived defendants of due process and were therefore unconstitutional.
Death statutes lacked standards. Safeguards were also lacking. The result, according to the court, blacks were treated more harshly than whites. Four years later in Gregg v. Georgia, the court reversed itself. A new generation of state death penalty laws had been drafted, providing new safeguards and standards. This time, the court refused to rule that capital punishment was unconstitutional in all circumstances. Executions started again.
BILL MOYERS: And earlier this year came another landmark case, McCleskey v. Kemp, also out of Georgia. The court was asked to decide if the death penalty should be set aside on the basis of statistical evidence that it is far more likely to be used against blacks instead of whites.
The statistical argument didn’t carry the case. Justice Powell, writing the majority decision, said the defendant failed to show that he personally was the victim of racial discrimination.
BILL MOYERS: Do you think that after the McCleskey decision, there’s going to be a steadier, swifter execution of the 1,900 men on death row?
JUSTICE F. POWELL, JR: I would be surprised if that occurred because I don’t think McCleskey basically changed the system under which capital punishment is administered. The only new element in that case was the introduction of statistics. And the criminal system has never depended on statistics.
Trial by jury involves a different jury in every case, and the factors and facts involved in any criminal case or indeed in any trial vary infinitely. I just can’t conceive that we would come to a system where cases would be decided on the basis of whether statistical studies showed that a life sentence, for example, was being discriminatorily applied.
JUSTICE F. POWELL, JR: We’ve gone through the process that assures that we review a case that comes up on direct appeal from a state court. Then our dual system in this country enables one on death row, or indeed any criminal defendant, first to go through the state post-conviction remedies, which means state habeas corpus, state trial court, state Supreme Court.
After those remedies have been exhausted, normal in a capital case a federal district court will also have a hearing, and the defendant who loses there may appeal to the Court of Appeals. And that case then is appealed to the United States Supreme Court.
JUSTICE F. POWELL, JR: So typically, in a capital case, the case will have been up here three times, and it will have been through the state system twice and through the federal system at least once, and sometimes two and three times.
No other defendant is given this degree of repetitive care by several courts at different levels over a period of time. I think those safeguards are important for all of us to understand, and yet I still say, Bill, that if I were the legislature, I might take a different view of this.
BILL MOYERS: If you were the legislature, you might vote against capital punishment?
JUSTICE F. POWELL, JR: I might. I have tried to avoid making the final judgment on that. What concerns me is that some of the basic grounds for capital punishment include deterrents. Murders are committed more frequently. The murder rate in the United States, I think, is the highest among the Western democracies. If there were a way to deter murders, I think we’d all like to know what it is.
BILL MOYERS: You don’t think the death penalty does?
JUSTICE F. POWELL, JR: It’s hard to know the extent of which it has or hasn’t, because so many other factors enter into the whole process. The drug factor, for example, has caused a steep increase in crime generally over a period of years, and that didn’t exist at all for a long, long time. But in any event, I think it’s hard to demonstrate now that capital punishment is an effective deterrent.
BILL MOYERS: You’ve been here now 15 years. You’re 80 years old. You’ve said this is the oldest court perhaps in history. Any thought about retiring?
JUSTICE F. POWELL, JR: My health has not been good. I go to the Mayo Clinic with some frequency. So I live, if not from day to day, from month to month or year to year, and so, to answer your question specifically, I keep an open mind about that. But at the moment, I have no present plans.
BILL MOYERS: You once said of your famous teacher in Virginia, George Withe that he lives in relative obscurity because unless a professor or lawyer gets a high office or writes a lot, he gets lost to history. Now, you were a lawyer who got a high position, and you’ve written a lot, almost as many opinions as any other member of this court. How do you think you’ll be remembered?
JUSTICE F. POWELL, JR: I couldn’t possibly speculate on that, Bill. I think if you look back at the history of Supreme Court justices, I was the 99th justice, including chief justices. And very few of them are household names. So I think, certainly in the long reach of history, I may be a footnote somewhere, but that’s the most I would expect.
BILL MOYERS: You will have written a lot of footnotes.
JUSTICE F. POWELL, JR: Too many, I think. Too many.
BILL MOYERS: This has been a conversation with Supreme Court Justice Lewis F. Powell Jr. I’m Bill Moyers.
This transcript was entered on April 16, 2015.
