Justice Lewis F. Powell: A Biography

"John Jeffries, my former colleague and friend, was a law clerk to Justice Powell in the early 1970s. He wrote one of the greatest judicial biographies of all time about Powell. Powell was one of the most influential justices in the history of the Supreme Court. He was a very smart man, a former president of the American Bar Association. But his influence was primarily a result of his position in the middle of the Court. John Jeffries tells the history of the Burger Court through the lens of a Powell biography. All these incredibly important issues arose during Powell’s tenure on the court from 1972 until 1987: Roe vs. Wade , death penalty cases, and affirmative action cases where Justice Powell was the decisive vote on a divided Court. John had access to all the private papers of Justice Powell and lots of other internal materials. And he’s a brilliant storyteller. Take the internal history of the gay rights case, Bowers vs. Hardwick , a case where the Court in 1986 said, by a vote of five to four, that a law criminalizing sex between consenting adult homosexuals is constitutional. Justice Powell had a gay law clerk, who was in the closet, working on the Bowers case. Powell says to the law clerk, ‘I’ve never known anybody who was gay in my lifetime.’ If Powell knew the law clerk was gay, he might’ve decided differently, because we know from social scientists that one of the most important factors in producing changing attitudes toward homosexuality is knowing people who are gay and lesbian. Powell was appalled by the idea of throwing people in jail for consensual sex, but he didn’t want to issue a broad ruling in favor of gay rights that would lead to something like gays serving openly in the military or gay marriage, because this is 1986 and he thought the country wasn’t ready. So Powell was looking for a narrow rationale to say, you can’t throw people in jail for consensual adult private sex, but he wasn’t able to come up with that rationale and his law clerks didn’t come up with it for him. Bowers was overturned by Lawrence vs. Texas in 2003. Powell later said, ‘I made a mistake in that case.’ Justice Powell was the swing vote on abortion. He was the swing vote on the death penalty. He was a swing vote on gay rights. He was the swing vote on affirmative action. He was one of the most influential justices in history, mostly because he was the middle of the Court in the same way that Kennedy and O’Connor became the middle of the court after Powell stepped down in 1987.It’s just a fascinating story about a statesman, trying to produce compromise positions and coalitions. And is that really his job? In 1970, the country was not as politically or ideologically polarized, the Democratic party was barely more liberal than the Republican party. Lots of voters split their ballots, it wasn’t unusual at all for somebody to vote for a Democratic congressional representative and a Republican president. Now the two parties hate each other. They’re as polarized as they’ve ever been. They don’t live in the same factual universe and they regard their opponents as dire threats to the state of democracy and capitalism. The justices are part of that universe of extreme ideological polarization. So everything is a knockdown, drag out fight. But the Republicans deserve more of the blame for this because Mitch McConnell did something that literally had never been done in American history—he stole a Supreme Court seat. The reason why the replacement for Powell was so controversial is that everybody understood that Powell was the swing vote on most important constitutional law issues. Justice Scalia, who was appointed the year before Powell stepped down, was unanimously confirmed, partly because he was replacing Burger—a conservative replacing a conservative. William Rehnquist was elevated from Associate Justice to Chief Justice at the same time Scalia was nominated. He attracted most of the Democrats’ fire, but was still confirmed by about a margin of two to one. Scalia replaced Rehnquist in the Associate Justice position. Between 1986 and 1987, Democrats took control of the Senate. Supreme Court Justices must be confirmed by the Senate, so now Reagan was going to have to get his Court candidates through a Democratic Senate. Since Justice Powell was the middle of the Court, Reagan’s next nominee would mean a power shift on the Court. “All the reforms that are vitally important for reducing inequality and entrenching democracy could be struck down by a conservative Supreme Court majority that was made possible by malapportionment” The other thing is the President decided to nominate Robert Bork, a conservative legal intellectual, who had taken some very controversial positions in his professional life. Bork had once argued that the 1964 Civil Rights Act was unconstitutional. In 1986, a bunch of Southern Democrats were elected to the Senate with overwhelming Black support. Obviously, African Americans were not enthusiastic about having somebody on the Court who had opposed the constitutionality of the 1964 Civil Rights Act. So there was an all-out fight over the Bork nomination. Liberals regarded Bork as an extreme outlier who really didn’t deserve to be on the Court. Bork was rejected and conservatives were embittered because they felt he was treated unfairly. For the next 20 years, there wasn’t a lot of controversy when a Democrat replaced a Democrat or a Republican replaced a Republican. The nomination of Clarence Thomas was controversial because it was a Democratic Senate, and Thomas, who opposed race-based affirmative action, was replacing Thurgood Marshall, the icon of the civil rights movement. When Ruth Bader Ginsburg replaced Justice Byron White and when Stephen Breyer replaced Justice Harry Blackmun, you had a liberal replacing a liberal; that was not controversial. When President George W. Bush nominated Samuel Alito to replace Justice Sandra Day O’Connor in 2005, there was more resistance because it was a conservative replacing a swing vote. But, again, during the Obama administration, when you had a liberal replacing a liberal, like Justice Souter being replaced by Justice Sonia Sotomayor and Justice Elena Kagan replacing Justice John Paul Stevens, they were approved, not overwhelmingly, not unanimously, but by substantial margins. Then in 2016, Senate Majority Leader Mitch McConnell stole a Supreme Court seat away. Democrats had earned control of the Supreme Court and he snatched it away from them on the basis of a principle that he has now flagrantly defied. Just four years ago, he said, ‘you do not replace people in the last year of a presidential term.’ And now with Justice Ruth Bader Ginsburg dying 45 days before the election, he is hypocritically defying this “principle.” That’s why nearly all the Democrats opposed Neil Gorsuch, all the Democrats but one opposed Kavanaugh, and all the Democrats will probably oppose Amy Barrett. A lot of Democrats are now thinking very seriously about expanding the size of the court. If Joe Biden is elected and Democrats take control of the Senate, that is going to be considered and I would advocate for it. Anything Democrats want to do in a Biden Administration, whether it’s expanding healthcare, imposing wealth taxes, trying to halt climate change, or expanding voting rights, could easily be struck down by a six-to-three conservative Court majority. I don’t think Democrats have any choice but to counteract that possibility. There’s a strong, affirmative case for Democrats expanding the size of the Court. If Democrats win in November, they will have won the popular vote in seven out of the last eight presidential elections; yet Republican presidents, who did not enter office having won the popular vote, will have appointed five out of the nine Supreme Court justices. Four conservative justices will have been confirmed by Senate majorities that were so slim that the senators in the majority did not represent a majority of Americans. Democrats are massively disadvantaged in the Senate by malapportionment, by which I mean that Wyoming has the same two senators as California, even though California has 70 times the population. There are structural disadvantages for Democrats in our current system—especially in the Senate, also in the electoral college and even in the House—that make it very difficult for majority will to make itself felt in the United States. But it is very difficult to do anything about malapportionment of the Senate or the unfairness of the Electoral College without a constitutional amendment. Unless they start creating new states, there’s a realistic chance Democrats would never win control of the Senate again after 2020. They have to make the District of Columbia a state and they should make Puerto Rico a state, as soon as Puerto Ricans vote in favor of it in a referendum. If Democrats don’t do that, they may lose control of the Senate in 2022 and never control it again. Again, to fix malapportionment in the Senate and the electoral college, you need a constitutional amendment. But you can change the size of the Supreme Court by statute. The main argument against doing that is it will lead to an endless cycle of retaliation where each side expands the Court. But the Republicans will do that the first time they have the opportunity and the need, regardless of what Democrats do. Mitch McConnell has shown in a half dozen different ways that he doesn’t care about traditional norms, traditional institutions, and traditional attitudes of forbearance. Democrats earned the opportunity to control the Court when Scalia died during Obama’s presidency, and it was stolen from them. Democrats ought to do it because there’s a good affirmative case for why they’re entitled to control. I don’t know if Senators like Joe Manchin or John Tester are going to go along with expanding the Court. If they don’t expand the Court, I’m pessimistic. All the reforms that are vitally important for reducing inequality and entrenching democracy could be struck down by a conservative Supreme Court majority that was made possible by malapportionment and McConnell’s unprecedented theft of a Supreme Court seat. Expanding the Court might be the last opportunity to enable political, social, and economic reform in the United States."