Path to the Supreme Court
The Supreme Court had to ask Lewis Powell twice. When Abe Fortas resigned in 1969, Richard Nixon offered the seat to the Richmond lawyer and was turned down. When Hugo Black's (§76) retirement opened another in the fall of 1971, Nixon came back, and Powell, sixty-four years old, resisted again. The President and his Attorney General pressed the point as a matter of duty, and duty was the one argument Lewis Powell never learned to refuse. By his biographer's account he explained the surrender simply: he could never have looked his children in the face if he had ducked the responsibility. The Senate confirmed him 89 to 1 on December 6, 1971, the lone no coming from Fred Harris of Oklahoma, and on January 7, 1972, he was sworn in alongside William Rehnquist (§100).
He was born in Suffolk, Virginia, on September 19, 1907, to a family that traced itself to the early Virginia settlements, and raised in Richmond, the city he never really left. At Washington and Lee he was president of the student body and took his law degree in 1931 first in his class, by the account the Senate itself was given; a year at Harvard for a master of laws put him in Felix Frankfurter's classroom. Then home: three years at one Richmond firm, then from 1935 the one that became Hunton, Williams, Gay, Powell & Gibson, a corporate practice of railroads, securities, and boardrooms, marriage to Josephine Rucker in 1936, and the steady accumulation of the offices that make an establishment lawyer: president of the Richmond bar, and in time of the American Bar Association itself in 1964-65, where he pushed the profession toward legal services for the poor, then of the American College of Trial Lawyers and the American Bar Foundation.
The war interrupted, and revealed the appetite under the courtliness. He took a commission in the Army Air Forces as an intelligence officer, served thirty-three months through North Africa and Sicily, and finished the war inside one of its most guarded rooms: trained at Bletchley Park and assigned to the staff of General Spaatz's strategic air forces as a handler of Ultra, the decrypted German signals traffic. He came home a colonel with the Legion of Merit, the Bronze Star, and the French Croix de Guerre, and with a wartime secret the world was not told for another thirty years.
Richmond then handed him the hardest chair in postwar Virginia: chairman of the city school board from 1952 to 1961, the decade of Brown and of the state's massive resistance. The record is argued in two directions and the chapter keeps both. To his credit, Richmond's schools stayed open while other Virginia localities closed theirs rather than integrate; to the critique, historians of the city note how little integration his board actually delivered, a pace one scholarly account calls tokenism. He went on to the State Board of Education through 1969, a moderate presiding over a process built to move slowly.
Then, in his last season as a private citizen, he wrote the other document he is remembered for. On August 23, 1971, at the request of Eugene Sydnor of the United States Chamber of Commerce, Powell produced a confidential memorandum titled 'Attack on American Free Enterprise System.' 'No thoughtful person can question that the American economic system is under broad attack,' it began, locating the assault on 'the college campus, the pulpit, the media, the intellectual and literary journals'; business, it argued, should organize, fund scholars and speakers, watch the textbooks and the television networks, and above all go to court, for 'under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.' Two months later its author was nominated to that judiciary; the Senate knew nothing of the memo, which surfaced in Jack Anderson's column only after Powell was seated. What it amounted to is still argued: later generations of conservatives and their critics alike treated it as a founding charter of the movement that built the think tanks and the litigation shops, while skeptics call that reading a myth built backward from a fundraising legend. The chapter records the argument; the sentence about the judiciary needs no help either way.
On the Supreme Court
On the bench the reluctant justice became, almost at once, the member the others had to persuade. The wire services said it plainly when he left: he had 'long been the swing vote on the court making the difference between whether a decision comes down with a liberal or conservative majority.' His first terms set the pattern. In San Antonio v. Rodriguez (1973) he wrote for five that school funding inequality violates no federal right, since education 'is not among the rights afforded explicit protection under our Federal Constitution'; in Keyes, the same year, he refused the comfortable Northern distinction between de jure and de facto segregation, writing that 'the evil of operating separate schools is no less in Denver than in Atlanta.' He joined the Court's unanimous ruling against his appointing President in United States v. Nixon (1974), and in Gertz v. Robert Welch that same year he gave libel law its modern foundation and the First Amendment one of its plainest sentences: 'Under the First Amendment, there is no such thing as a false idea.'
Bakke (1978) made the pattern famous. Four justices would have upheld the Davis medical school's racial quota; four would have ended the program on the statute without reaching the Constitution; Powell, writing for himself alone, split the difference and made his solitary opinion the law of admissions for a generation. Quotas failed his reading of the Fourteenth Amendment, for 'the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color'; yet 'the attainment of a diverse student body' was 'a constitutionally permissible goal,' and race could count as a 'plus' in a file. A quarter century later, in Grutter, Sandra Day O'Connor (§102) wrote his diversity rationale into a true majority. One justice, concurring with himself, had set the terms of the American argument over affirmative action for forty-five years.
The last two terms delivered the three cases that define the closing ledger. In Batson v. Kentucky (1986) he wrote for the Court that striking jurors by race 'harms not only the accused,' since denying a citizen jury service on account of race unconstitutionally discriminates against the juror as well. In Bowers v. Hardwick (1986) he cast the fifth vote to uphold Georgia's sodomy law, after a conference switch his colleagues and clerks later described; the accounts have him telling colleagues he had never known a homosexual, unaware that clerks in his own chambers were gay. And in McCleskey v. Kemp (1987) he wrote for five that statistical proof of racial disparity in death sentencing states no constitutional claim, because 'apparent disparities in sentencing are an inevitable part of our criminal justice system.' The audits came after. At New York University in 1990 he answered a student's question about Bowers: 'I think I probably made a mistake in the Hardwick case'; and when his biographer asked in retirement which vote he would change, he named McCleskey, adding, 'I have come to think that capital punishment should be abolished.' The swing justice's final swings were cast against himself.
The Supreme Court Database explains why the persuading always ran through him. Across 2,383 coded votes his liberal share was 39.3 percent against a docket baseline of 49.8, a measured lean to the right of center; his closest colleague in divided cases was Warren Burger (§97) at 79.3 percent, his furthest William O. Douglas (§79) at 29.2. But two numbers separate him from every other justice in this program. His dissent rate was 10.0 percent while his colleagues, on the very same cases, dissented at 20.8: half the bench's appetite for losing. And his drift, the change in his gap from early terms to late, is -0.3 points, the smallest of the twenty-seven justices with a record long enough to measure, with every component failing statistical significance. On the seventh pass through this program's oldest question, Powell is the first justice of whom the data says: nothing moved at all. The program has met a fixed pole in Scalia (§103); Powell is the fixed center. A Court that cannot move its middle justice must come to him, and for sixteen terms it did.
He announced his retirement on June 26, 1987, with characteristic accounting: 'On September 19, I will be 80 years of age,' and 'age 80 suggests retirement.' 'Today was one of my worst moments,' he added. 'I leave the court with a great deal of sadness.' What followed showed what his seat had been worth: Robert Bork was rejected, Douglas Ginsburg withdrew, and the seat passed in February 1988 to Anthony Kennedy (§104), who inherited the center with the chair. Powell spent retirement sitting with the courts of appeals and cooperating with the biography his former clerk John C. Jeffries Jr. published in 1994; it was to Jeffries that he named the vote he most regretted. Josephine died in 1996. He died in his sleep, of pneumonia, at his home in Richmond on August 25, 1998, at ninety, and was buried in Hollywood Cemetery. At the funeral Sandra Day O'Connor quoted the precept she said he had lived by: 'Do your duty in all things. You cannot do more. You should never do less.' It was the argument that had put him on the Court against his own inclination, and the standard by which he afterward graded his own votes in public, marking two of them wrong.
The Voting Record
How Powell voted in the 2,448 cases the Supreme Court Database records from the 1971 term through the 1986 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Powell voted with Burger more than with anyone else — the same side of the judgment in 79.3% of their 1,442 divided cases — and with Douglas least, at 29.2%. See the matrices →Compared against the 10 colleagues Powell shared at least 300 divided cases with.
And Powell barely moved: 0.3 points between the first five terms and the last, which is less than the year-to-year noise — one of the most fixed records on the modern Court. See who changed →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Regents of the University of California v. Bakke
1978Holding · Rigid racial quotas in admissions are unconstitutional, but race may be considered as one factor among many in pursuit of a diverse student body.
Role · Powell's solo controlling opinion held the balance on a Court split four to four.
His 'diversity' rationale became the law of university admissions from Bakke through Grutter (2003, O'Connor §102) until the Court rejected it in 2023.
Read the opinion →McCleskey v. Kemp
1987 · 5–4Holding · Statistical evidence of systemwide racial disparity in capital sentencing does not prove unconstitutional discrimination in a particular case.
Role · Powell wrote for the Court.
A pivotal death-penalty ruling; Powell later told his biographer it was the vote he would change.
Read the opinion →Bowers v. Hardwick
1986 · 5–4Holding · The Constitution confers no fundamental right to engage in homosexual sodomy; a state may criminalize it.
Role · Powell provided the decisive fifth vote (the opinion was written by White §93); he soon called his vote 'probably' a mistake.
Overruled seventeen years later in Lawrence v. Texas (2003, Kennedy §104); Powell's public second thoughts are nearly unique in the Court's history.
Read the opinion →Go Deeper
Lewis Powell came to the Supreme Court in 1972 as the very model of the establishment lawyer — a courtly Richmond attorney, former president of the American Bar Association, corporate counsel and school-board moderate — and became, for fifteen years, the Court's decisive man in the middle, the justice whose vote settled affirmative action, the death penalty, abortion, and gay rights. He cast the controlling vote and wrote the controlling opinion in Regents v. Bakke, saving affirmative action by grounding it in the 'diversity' rationale that governs university admissions to this day; he wrote McCleskey v. Kemp, rejecting statistical proof of racial bias in capital sentencing, a vote he later said he would change; and he provided the fifth vote in Bowers v. Hardwick to uphold sodomy laws, a decision he publicly called a probable mistake within years of leaving the bench. John Jeffries's biography — by a former Powell clerk, and one of the finest judicial lives ever written — is the essential book. Begin with Jeffries, then read Bakke and McCleskey to watch the swing vote at work.
The Bookshelf
One of the great judicial biographies, and the indispensable book on Powell. Jeffries, a former Powell clerk who became a distinguished law dean, writes with intimate knowledge and scholarly candor — admiring but unsparing, especially on Bowers and McCleskey. He captures the Virginia gentleman-lawyer, the reluctant nominee, and the pragmatic centrist who disliked grand theory and decided case by case, and he reconstructs the deliberations behind Powell's most consequential votes. Elegant, humane, and honest about its subject's failures as well as his virtues, it is a model of the form. Scribner's; reprinted by Fordham University Press.
The lonely, controlling opinion that shaped American affirmative action for decades. With the Court split four to four on either side, Powell's solo opinion held the balance: rigid racial quotas were unconstitutional, but race could count as one factor among many in the pursuit of a diverse student body. No other justice fully joined him, yet his 'diversity' rationale became the law of university admissions, governing from Bakke through Grutter (2003) until the Court rejected it in the Harvard and UNC cases (2023). Read it as the purest example of a swing justice writing for himself — and, for a generation, for the nation.
One of the most consequential — and, to critics, most troubling — death-penalty decisions ever rendered. Presented with a rigorous statistical study showing that Georgia's capital system punished killers of white victims far more often than killers of Black victims, Powell held for a five-to-four Court that such systemwide disparities did not prove unconstitutional discrimination in any particular case. Jeffries's biography reports that Powell, asked after retirement which vote he would change, named McCleskey. Read it beside that admission as a study in the limits of statistics, the machinery of death, and a justice's own second thoughts.
Two months before Nixon nominated him, Powell wrote a confidential memorandum to the U.S. Chamber of Commerce — 'Attack on the American Free Enterprise System' — urging business to organize, fund, and fight for its interests in politics, the academy, and the courts. Rediscovered later, the 'Powell Memo' is treated by many historians as a founding document of the modern conservative and business-advocacy movement. Read it (widely reprinted, and archived with his papers at Washington & Lee) as a revealing portrait of the man's worldview on the eve of a judicial career built on studied moderation. Assess the tension for yourself.
The National Book Award finalist that gives the Powell Memorandum its full historical frame — Powell's tobacco-industry years, the 1971 memo, and his Bellotti opinion as the hinge of the corporate-rights revolution that ran to Citizens United. The book that explains why the memo on this shelf matters. Liveright.
The classic inside-the-Court reconstruction of Bakke from the justices' internal papers — with Powell's lone controlling opinion, the diversity rationale that governed admissions for forty-five years, at its center. The fullest study of Powell's single most consequential act. NYU Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Jeffries, Justice Lewis F. Powell, Jr. — for the definitive, clear-eyed life by a former clerk
- 2.Regents v. Bakke — for the swing vote that shaped affirmative action for decades
- 3.McCleskey v. Kemp — for the death-penalty vote he later said he would change
- 4.The Powell Memorandum — for his worldview on the eve of the bench
Where the Papers Are Kept
Powell left his papers to his alma mater, Washington and Lee, where the Lewis F. Powell Jr. Archives hold his case files, correspondence, and the working records of fifteen years at the center of the Court. The case files — including his notes and memos on Bakke, McCleskey, and Bowers — are a superb resource for studying how a pivotal justice actually decided, and much of the collection is being digitized. An essential archive for the modern Court. Visit →
Ideas for Further Research
- The man in the middle. For much of his tenure Powell was the Court's decisive vote, resolving its deepest divisions by temperament rather than theory — case by case, fact by fact. Study the strengths and costs of the pragmatic centrist: does the swing justice bring wisdom and moderation, or unaccountable personal power and unstable doctrine? Bakke, where his solo opinion became national law, is the sharpest test.
- Second thoughts. Powell is nearly unique among justices in publicly repudiating two of his own votes — Bowers, which he called a probable mistake, and McCleskey, which he named as the vote he would change. Study these confessions against the finality the Court projects, and ask what it means for the rule of law when a justice concedes, too late, that he decided wrongly in cases that governed millions.
- The memo and the moderate. The 1971 Powell Memorandum urged American business to wage an organized campaign in politics and the courts; a decade later its author sat at the Court's balancing point, ruling on the very forces he had helped mobilize. Weigh the private advocate against the public model of judicial restraint, and ask how much a justice's prior worldview shapes a jurisprudence that presents itself as neutral. Seat lineage: Hugo Black §76 → Lewis Powell → Anthony Kennedy §104.