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LEWIS POWELL, SEARCHER FOR FAIRNESS

Lewis F. Powell was a remarkable justice on a remarkable U.S. Supreme Court in remarkably difficult times.

Consider his role in the historic Regents of the University of California v. Bakke case in 1978. Incredibly, Powell broke a seething 4-to-4 deadlock and cast the deciding vote in a declaration that it was constitutionally permissible for the University of California at Davis to consider race in its affirmative action admissions program; then he cast the deciding vote in a 5-to-4 decision that the university had created a quota in setting aside 16 medical school slots for minorities, and this violated the constitutional rights of white applicant Alan Bakke.

These conflicting roles in a single case suggest that Powell, the privileged son of Virginia's post-Reconstruction aristocracy, was a wishy-washy double-dealer. But he wasn't. He was what our highest court needs more of: a pragmatic, common-sense searcher for reason and justice.

It made sense to Powell when the late Justice Thurgood Marshall said that a society that for 200 years had practiced "the most ingenious and pervasive forms of discrimination against the Negro" could not simply say suddenly that no one could consider race in any remedies. Powell was also moved when fellow Nixon-appointee Harry A. Blackmun said, "In order to get beyond racism, we must first take account of race."

But a hard set-aside, in Powell's mind, crossed the line from permissible affirmative action into the forbidden area of quotas.

His reliance on his idea of what was decent (or good for society) came through in 1982, when he provided the crucial fifth vote in a decision -- Plyler v. Doe -- that Texas had to provide free public education for the children of illegal aliens.

"It can hardly be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons," he wrote.

In struggling for what was "right," Powell sometimes got it wrong, but he was not too proud to admit it. He once voted, in another 5-to-4 decision, that there was not enough evidence that Georgia imposed the death penalty on a racist basis, so its capital-punishment law could stand.

A bitter Justice Marshall said to me that "Powell got log-rolled," referring to the wooing and cajoling practiced by factions on the court. After his retirement, Powell said publicly that he had always regretted voting to sustain the death penalty, because he had seen that it was imposed unfairly.

He privately expressed pride that he went against the man who appointed him, Richard Nixon, and voted with the majority in Roe v. Wade to assert that a woman had a right of privacy to get an abortion. Here again, a real-life experience of helping a young man to avoid prosecution after his girlfriend died in an illegal abortion attempt had shaped Powell's idea of what was just.

He would later vote that this same privacy right did not flow to homosexual adults who engaged in consensual sex. He confessed to students years later that he had made a mistake with that vote and still regretted it.

Powell died Tuesday at age 90, still highly respected, although under-appreciated, I think, as a jurist in a time of social revolution and great conflict within America and the Supreme Court on racial and social issues.

But there was greatness in the fact that he was not a slave to his upbringing in Jim Crow Virginia, or to his class, or his political benefactors and associates. He was not a rabid ideologue, as are a couple of members of the court today. Thus, he could be very persuasive at what have become historic moments.

We must pray that the pragmatic yearning for common-sense justice that Powell manifested did not die with him.

North America Syndicate

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