Obituary: Lewis Franklin Powell Jnr

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The Independent Culture
LEWIS FRANKLIN Powell was a largely unsung member of the US Supreme Court, a southerner of the old school and a learned jurist, rarely in the contentious limelight of great legal argument, but someone who could play a pivotal role in the formulation of some of the court's most important rulings of the time.

He served as an associate justice for 15 years until his retirement in 1987 at the age of 80 and was instrumental in at least two landmark decisions. One was the 1978 Bakke case, in which he wrote the majority opinion in the 5-4 ruling which first upheld the concept of affirmative action, the doctrine which accepts minorities require special help to overcome discrimination. Earlier he had spoken for the court in its decision, also by a 5-4 vote, which declared that a President had "absolute immunity" from being sued for monetary damages for any misconduct which was part of his official duties.

The case in question - almost inevitably - involved Richard Nixon, the very President who in 1971 had asked a reluctant Powell to take a seat on the court, three years before he would be forced in disgrace from the White House. If pressed, Powell would describe himself as a conservative, but he always took pains to steer clear of ideology. At the end of his service, his fellow justices paid tribute to him for his "extraordinary capacity" to take part in legal debates "without ever allowing advocacy to degenerate into contentiousness."

The style reflected the upbringing of a scion of the old Commonwealth of Virginia, a graduate of Washington and Lee University in Lexington, and then of Harvard Law School. Before joining the high court, Powell spent 40 years at the venerable Richmond law firm of Hunton, Williams, Gay, Powell and Gibson, where he became a partner in 1938.

During that time he served as both president of the American Bar Foundation and of the US lawyers organisation, the American Bar Association, as well as a member of a Presidential panel examining the functioning of the Defence Department.

The last appointment was no accident. Powell had joined the army in 1942 and spent four years in the military. They included 32 months as an intelligence officer in Europe, mostly a stint in top secret work of Bletchley breaking Nazi war codes, as a member of a unit whose very existence was not revealed until 1974.

If there was a blemish on his career, it was his decisive vote in a 1985 case that ruled consenting adults did not enjoy a constitutional right to private homosexual acts. Times were perhaps moving faster than an old judge would like. His opinion, he later conceded, was "probably a mistake."

Otherwise Powell was universally admired. He was a tall and slender man of great courtliness yet quiet perseverance, a scholar who shunned self- advertisement. "The gentleness and gallantry of the old South are gathered in the person of Lewis Powell," the New York Times wrote.

Lewis Franklin Powell, lawyer: born Suffolk, Virginia 19 September 1907; Associate Justice, US Supreme Court 1972-87; married 1936 Josephine Rucker (one son, three daughters); died Richmond, Virginia 25 August 1998.

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