THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Sunday, September 11, 1994 TAG: 9409090619
SECTION: COMMENTARY PAGE: J2 EDITION: FINAL
TYPE: Book Review
SOURCE: BY LAURA LAFAY
LENGTH: Long : 104 lines
JUSTICE LEWIS F. POWELL, JR.
A Biography
JOHN C. JEFFRIES JR.
Charles Scribner's Sons. 690 pp. $30.
John C. Jeffries, a law professor at the University of Virginia who once clerked for Lewis F. Powell Jr., has written a meticulous, painstakingly researched account of the retired, Virginia-born Supreme Court justice's equally meticulous, painstakingly calculated career.
The eldest of four children born into a successful Richmond merchant family, Powell, who served on the high court from 1972 to 1987, was always a cautious perfectionist. Even as a boy, Jeffries writes in Justice Lewis F. Powell, Jr.: A Biography, ``he had a modesty and fastidiousness that endured throughout his life.'' The young Powell, soft-spoken like his mother, refused to mount a horse, ``hated'' to mow the lawn and received straight A's in school.
Powell's principal act of youthful defiance apparently was his decision to attend Washington and Lee University instead of the University of Virginia. He was president of the student body at Washington and Lee and, in 1931, graduated first in his class from the university's law school. To please his father, he spent an extra year at Harvard Law School.
``Psychologically disposed towards acceptance and conformity,'' Jeffries writes, ``he embraced law as a tradition rather than as an instrument for change.''
Powell took up corporate law after Harvard, working for the prestigious Richmond firm of Hunton, Williams, Anderson, Gay and Moore. In 1936, he married Josephine Rutter, a doctor's daughter who ``embraced (his) ambitions, tolerated his long hours and deferred to his wishes.'' They had three children and spent most of their married life living with her parents in their ancestral Richmond mansion.
Although the tone of Jeffries' book is largely deferential to Powell, his portrait of Powell's service in World War II is not a sympathetic one. Powell, who never saw combat but hated discomfort, seems to have spent most of the war whining about his living conditions in long, demanding letters home.
Jeffries' book is also laced with astute, sometimes wry asides about Powell's motives, character and ambitions. As counsel and member of the board of directors for Philip Morris, for example, Jeffries notes that ``Powell took up smoking.''
At least he tried to. In fact, he never learned to inhale. He simply went through the motions on certain social and public occasions, notably the Philip Morris board meetings, where photographs would be taken of the directors holding or smoking cigarettes. (The wife of one of Powell's partners said: ``It's a good thing they don't sell condoms.'')
Powell's conservative, segregationist behavior as chairman of the Richmond School Board (1951-1961) and member of the Virginia State Board of Education (1961-1968) also gets harsh scrutiny from Jeffries. Throughout his tenure on both boards - a period that spanned the Supreme Court's decision in Brown v. Board of Education and Virginia's policy of massive resistance to integration - Powell managed to maintain a calculated silence on the issue of segregation.
``In his two terms on the state board,'' writes Jeffries, ``Powell never did anything more than was necessary to facilitate desegregation.
``He never took a leading role. He never spoke out against foot-dragging and gradualism. He never really identified himself with the needs and aspirations of Virginia's black schoolchildren. . . He complied with the law, but found it `diplomatically sound not to do any more than absolutely required.' ''
Powell, a Nixon appointee, brought this cautious sensitivity to conventional morality to the Supreme Court. He voted for abortion rights in Roe v. Wade, Jeffries says, because he equated the case with Griswold v. Connecticut, which successfully challenged the illegality of contraception with a right-of-privacy argument. Powell thought that abortion, like contraception, would eventually gain widespread acceptance.
He took a similar approach to affirmative action in Regents of the University of California v. Bakke, the so-called ``reverse-discrimination'' case. Powell ``dreaded chaos and upheaval,'' explains Jeffries. ``Law should serve the cause of social stability, and by the time of Bakke, social stability required affirmative action.''
In Bowers v. Hardwick, a 1986 case challenging Georgia's law against sodomy, Powell joined with the majority in declaring that individuals do not have ``a fundamental right to engage in homosexual sodomy'' (a decision he later said he regretted). During the decision-making process in Bowers, Jeffries reports, Powell, then close to 80, made a telling remark to his clerks: He had never, he said, known a homosexual.
In his analysis of this remark, Jeffries gives important insight into what was both Powell's greatest strength and greatest flaw: a kind of blindness described by his admirers as moral neutrality.
``Of course, Powell knew homosexuals,'' writes his former clerk. ``The question was whether he acknowledged anyone he knew as homosexual. The answer is that he did not, largely because he did not want to.''
Justice Lewis F. Powell, Jr. is a skillfully written biography packed with detail and astute analysis. It portrays an ambitious, calculating, successful man. The question is: How much do we really want to know about Lewis Powell? MEMO: Laura LaFay is a staff writer. She recently earned a master's degree in
law from Yale University. ILLUSTRATION: JOHN EARLE/Staff
by CNB