The Washington Post
Navigation Bar
Navigation Bar

Related Items
 From The Post
  • Resignation statement
  • Editorial: Powell's Announcement
  • Ed Yoder on Powell

    On Our Site

  • Powell Dies at 90
  • Supreme Court Report

  •   Justice Powell Resigns, Was Supreme Court's Pivotal Vote

    By Al Kamen
    Washington Post Staff Writer
    Saturday, June 27, 1987; Page A01

    Justice Lewis F. Powell Jr., the pivotal vote on the Supreme Court on some of the most controversial social issues facing the nation, stepped down yesterday after 15 1/2 years on the bench, giving President Reagan his long-sought opportunity to put conservatives in control of the high court.

    Powell, who will be 80 in September and has suffered from prostate cancer, said he is leaving the court because of failing health, adding that he had considered quitting in 1982 but that his family had persuaded him to stay on.

    Powell, a conservative Democrat appointed by President Richard M. Nixon, generally voted with the court's conservative wing, especially on criminal, business and other issues, joining them this term more than 80 percent of the time. But he is seen as the justice who almost single-handedly stymied the Reagan judicial revolution, consistently voting against the administration in close cases involving abortion, affirmative action and separation of church and state.

    Powell was the critical fifth vote in 1985, for example, when the court struck down a major federal program of aid to parochial schools. He was the key vote last term when the court reaffirmed its 1973 decision establishing a constitutional right to abortion. And he was the decisive vote in a ruling last term that held that judges may order strict racial preferences in union membership if there has been prior discrimination.

    Reagan, who had no warning of the resignation, telephoned Powell and told him the country "owes you a great debt" for his long service on the court. Reagan said in a statement that he will nominate a replacement for Powell soon so that the court would begin the next term "at full strength."

    Considered high in the running for the nomination are Robert H. Bork, a U.S. Court of Appeals judge here, Sen. Orrin G. Hatch (R-Utah) and J. Clifford Wallace, a U.S. Court of Appeals judge in California.

    White House officials said they will try to decide on a nominee as soon as possible, perhaps as early as next week, and that "confirmability" by the Democratic-controlled Senate will be a major consideration. If Reagan's first nominee is rejected, they fear that time could

    run out on his presidency before a second nominee can be confirmed.

    Senate Democrats, making it clear that the confirmation process will not be smooth, said yesterday that confirmation hearings by the Judiciary Committee will not begin until after the August congressional recess and perhaps not until the court's term begins in October.

    Reaction to Powell's departure was divided along ideological lines. Conservatives, who had been disappointed by a number of liberal victories this term -- the first year of the Rehnquist court -- were elated. "Powell's the consummate swing vote," said Patrick McGuigan of the Free Congress Foundation. "This term he essentially picked sides, and the side he picked was {liberal Justice William J.} Brennan's."

    Others conservatives, worried that time is running out on the Reagan presidency, welcomed the opportunity to put a staunch conservative on the court to replace the pragmatic Powell.

    "This is the last chance Ronald Reagan has to leave his mark on the Supreme Court," said Daniel J. Popeo, head of the Washington Legal Foundation. Reagan, he said, "will have a tremendous opportunity that few presidents have" to shape the future of the court far beyond his term.

    Liberals were shocked and dismayed. "Oh my God," said Marsha Levick, executive director of the National Organization for Women's Legal Defense Fund, when told what she said was the "devastating news."

    "I'm appalled. This means a lot of bad things for the civil rights community," she added.

    "It's a real loss for the court," said Art Kropp, executive director of People for the American Way. "He's been an enormous influence on the bench, a pragmatic centrist, and he's played a key role in rejecting the administration's position on abortion rights, affirmative action and generally been protective of the separation of church and state. The resignation is obviously troubling because of the critical role he's played."

    The departure of the soft-spoken Virginian removes a key centrist from the closely divided nine-member court. Powell, a quintessential Southern gentleman and non-ideologue, based his votes on his sense of justice and fairness, siding with the conservative wing on most criminal issues and with the liberals on social issues.

    The American Civil Liberties Union yesterday listed 20 major civil liberties cases decided this term on 5-to-4 votes; Powell was in the majority in every one.

    A similar voting pattern two years ago led former ACLU legal director Burt Neuborne to call Powell "the most powerful individual in America."

    Powell's influence has grown in recent years as the "floating center" of justices who dominated the court gradually has shrunken. For most of the Burger years, 1969 to 1986, the centrist votes were Powell's, along with Justices Byron R. White, Harry A. Blackmun, John Paul Stevens and the late Potter Stewart. Stewart, a close friend of Powell's who retired in 1981, was replaced by the more conservative Sandra Day O'Connor.

    White moved to the right while Blackmun and Stevens drifted left, leaving Powell alone in the middle on many issues.

    Depending on who replaces him, Powell's departure is likely to put O'Connor in the position of the swing vote on the most closely divided issues -- including abortion, affirmative action and separation of church and state.

    O'Connor, based on prior votes, is almost certain to favor increased power for the states to restrict abortion, but, despite her oft-stated misgivings about Roe v. Wade, the 1973 decision legalizing abortion, it is not clear whether she would

    provide a fifth vote to strike it down.

    In addition, O'Connor may now be the key to future court rulings on affirmative action. She has generally sided with the liberal wing in the most significant affirmative-action cases but often concurred on narrower grounds than the liberal majority.

    O'Connor is also expected to play a major role in debates on religion in the public schools. Powell was the critical fifth vote barring state and federal aid to parochial schools in 1985. His replacement might be more receptive.

    A wealthy corporate lawyer, former American Bar Association president and head of the Virginia Board of Education, Powell was 64 years old when Nixon appointed him to the high court to succeed Hugo L. Black in 1972.

    Powell had taken himself out of the running for the Supreme Court when a vacancy had occurred in 1969, saying that he did not want to go on the court and that he was too old. When Nixon prevailed on him two years later, Powell said yesterday, "I stated that if I were confirmed I would not expect to remain on the court more than 10 years."

    Powell said only the unanimous objections of his three daughters and one son persuaded him to stay on the court after his first 10 years.

    Powell, who has looked frail for years and has been troubled by cataracts, said in a statement yesterday that his "health has not been robust." He said he underwent surgery for prostate cancer in 1985, an operation that left him visibly weaker for months. He had said privately that he intended to remain on the court if his doctors felt he could work.

    Powell said "all tests were favorable," after a checkup this month and that he is in good health. But sources said Powell has tired easily, especially after the prostate operation, and has often taken time to rest in the afternoons to conserve his strength.

    Powell said he was "concerned -- based on past experience -- that I could handicap the court in the event of reoccurrences of serious health problems."

    Powell said he discussed the matter with his wife and children this week. He said his son, also a lawyer, told him: "Dad, it's a whole lot better to go out when some people may be sorry than it is to wait until when you decide to go ahead {and} people say, 'Thank God, we got rid of that old gent.' "

    On Wednesday he told Rehnquist that he was strongly considering retirement, according to court press officer Toni House.

    On Thursday morning at breakfast he told his wife, Josephine, who said she had been urging him to retire for years. Later that day he told Rehnquist, who made the announcement yesterday as the court prepared to leave for summer recess until next October.

    Powell said he informed his colleagues shortly before the justices assumed the bench.

    Throughout his career, Powell, a workaholic with few outside hobbies, worked at the court 6 1/2 days a week. Unfailingly polite, he observed a strict code of decorum in the often rough battles on the high court, never personalizing them

    and always recoiling from extremes.

    Though conservative, Powell searched for the middle ground. For this reason, experienced Supreme Court litigators often targeted

    Powell when formulating their arguments, believing that an argument that would suit him would inevitably attract at least four other justices.

    He was, former law clerk John C. Jeffries Jr. said yesterday, "quintessentially the lawyer as judge. That is, he never brought an ideological meat cleaver to any problem but looked at the facts and the record very carefully and the precedents and each case as it came up."

    Rehnquist, announcing the retirement from the bench, said the justices "shall miss his wise counsel in our deliberations, but we look

    forward to being the continuing beneficiaries of his friendship."

    © 1987 The Washington Post Company

    Back to the top

    Navigation Bar
    Navigation Bar
    WP Yellow Pages