Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, June 27, 1994 TAG: 9406270068
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: DAVID REED ASSOCIATED PRESS
DATELINE: CHARLOTTESVILLE LENGTH: Long
Few people know what happens when the nine Supreme Court justices rise from their mahogany bench, disappear through the red velvet curtains behind them and sit at a conference table to secretly discuss the nation's biggest legal conflicts.
What is said in conference is known only through the justices' handwritten notes. No transcripts exist. No outsider is allowed to attend, no secretary, law clerk or even a messenger.
The conference votes are not binding and occasionally change after the justices see the draft opinions. But as John Jeffries writes in a biography of former Supreme Court Justice Lewis Powell, "Most cases are decided in the conference room the same week they are argued."
The justices' personal notes, memos to each other and additional documents that portray the inner workings of the court have traditionally been kept private for decades after their retirements.
Hugo Black, whom Powell replaced on the bench in 1971, ordered an employee to burn his private papers in the back yard of his Alexandria home.
In their book, "The Brethren," Bob Woodward and Scott Armstrong revealed some of the behind-the-scenes disputes within the Supreme Court by persuading clerks to provide copies of secret documents.
Powell, 86, had planned to keep his papers private for 10 years after his death, Jeffries said. But in 1988, a year after his retirement, Powell agreed to give Jeffries, his former clerk on the Supreme Court, unprecedented total access to a contemporary justice's files and private papers for use in the biography.
Jeffries said most justices believe that if their internal deliberations are made public, the justices would no longer feel free to talk candidly about cases.
"The personal papers contain the inside history of every decision they render," said Jeffries, a law professor at the University of Virginia.
Jeffries said that three years after Powell gave him access, Thurgood Marshall, in the terms of his will, became the first Supreme Court justice to permit public access to his personal papers. The papers, placed in the Library of Congress, were made available to the public after Marshall died last year.
"We are entering a new era of openness regarding the Supreme Court," Jeffries said.
Powell had no editorial control in the writing of "Justice Lewis F. Powell, Jr." and has not even read it, Jeffries said.
The book deals not only with Powell's life and views but provides the background of key decisions and recounts the sometimes surprising interactions among the justices and their clerks.
The majority decisions involving Powell included Roe vs. Wade, which first extended constitutional protection to abortion; the Bakke case, which allowed race-based affirmative action; and the Watergate tapes case, which led to the resignation of President Nixon.
A private letter explained Powell's reasons for supporting an expedited review of the case involving Nixon's Oval Office tapes: "As so often happened," Jeffries writes, "Powell provided the deciding vote." The tapes showed that Nixon was involved in the Watergate coverup, and the Supreme Court rejected Nixon's effort to keep them secret.
Draft opinions show the development of the Bakke affirmative action case. Four justices opposed racial preferences and four supported them. Powell broke the tie with his hybrid opinion that allowed racial preferences but not strict quotas.
Powell, who lives in Richmond, called it his most important decision and Jeffries wrote that it was a "defining moment. Powell was true to his essential character as a pragmatic conservative."
Powell's nearly 16 years on the court saw a swing in judicial balance, from the liberal court under Chief Justice Earl Warren to the conservative court under Chief Justice William Rehnquist.
"Powell's role as an occasional liberal savior had not been anticipated when Nixon nominated him to the Supreme Court," Jeffries wrote. "At the time, most observers expected him to move in lockstep with the other Nixon appointees. Instead, Powell proved to be highly independent, open to argument and unusually willing to reconsider his own preconceptions."
Jeffries said it took him five years to finish the biography because he wanted to "portray the whole man, not just his life as a judge" and to write it for people outside the legal profession.
Powell was born in Suffolk on Sept. 19, 1907, the son of a successful businessman, and graduated first in his class at Washington and Lee University. He was chief of intelligence for the U.S. Eighth Air Force in Europe during World War II, one of a few people entrusted with the "Ultra" code-breaking secret. He was chairman of the Richmond School Board and the Virginia Board of Education and president of the American Bar Association.
Jeffries interviewed hundreds of people for the book and talked with Powell numerous times.
In one of those sittings, Powell told Jeffries that he had "come to think that capital punishment should be abolished."
Powell was a key vote for the death penalty at a time when the court was closely divided on the issue. Powell is quoted in the book as saying that because complex appeals delay most death sentences, the penalty "brings discredit to the whole legal system."
Jeffries also discloses new information about Powell's role as chairman of the Richmond School Board during the era of "massive resistance" to school desegregation. Powell was publicly silent on the issue but worked behind the scenes to persuade decision-makers the policy was "legal nonsense."
After Douglas Wilder became the nation's first elected black governor, he chose Powell to administer the oath of office. Powell called it "a great day for Virginia."
Jeffries writes, "For the sea of young black faces raised in pride and triumph, the good wishes of a frail old white man may have meant very little, but to those with long memories, it was a gracious benediction from the best of the old order."
by CNB