Lewis Powell: The Marble Palace’s Southern Gentleman

Q. What do you consider to be your most important Supreme Court opinion?

A. The case that people think is the most important is Bakke ((decided in 1978)), because it firmly established affirmative action. About six cases since have reiterated its basic elements. Bakke is now the law.

Q. What is the future of the right to abortion?

A. Let me just leave it with this: I joined Roe v. Wade, and I wrote the Akron case, which reaffirmed Roe v. Wade. I have had no occasion to consider whether I would change my views, and I have no reason to believe that I would.

Q. You have said you would vote against the death penalty as a legislator, yet on the court you voted to uphold it. Why?

A. It is perfectly clear, at least for me, that the death penalty is constitutional. The Fifth and 14th amendments only prevent the denial of life and liberty without due process of law. When Chief Justice Earl Warren was on this court, in an opinion called Trop v. Dulles, he recognized that capital punishment was not cruel and unusual punishment under the Eighth Amendment. But quite apart from what the Constitution may provide, if I were in a state legislature, I would vote against capital punishment. The U.S. is the only country among the Western democracies that still has it. I’m not sure that the taking of one life is justified by the taking of another. Also, contrary to what many people assume, capital punishment does not deter murder. There are about 20,000 murders committed in the U.S. each year, and that’s been a fairly consistent figure. The U.S. permits unlimited sale and ownership of handguns, and the murder rate reflects that to some extent.

Q. As president of the American Bar Association in 1965, you said the liberal Warren Court had swung the pendulum “too far in favor of” criminal rights. For at least a decade, the court has become far more conservative on criminal rights, and yet crime is still rampant. Were you wrong?

A. Well, I’ve been wrong many times. I was not a judge in 1965, and I had never practiced criminal law. But it did seem to me at that time — and perhaps without adequate study — that there were good reasons for reforming the system.

Q. Is it fair to say that you subsequently reconsidered your position?

A. I think it is fair to say. For example, in one of the early opinions I wrote, the question was whether or not wiretaps could be conducted without a warrant at the request of the President. I wrote the opinion that held it was appropriate to require a warrant. But when I was practicing law, I made a speech indicating that the President ought to have the right to wiretap without a warrant. When you put on the black robe, the experience is sobering. It makes you more thoughtful.

Q. How secure is the right to privacy?

A. Basically, the right has been respected. It certainly should be. But when you consider that you can take a picture from a satellite and see a tennis ball on a tennis court, you recognize that today there’s no such thing as the type of privacy that existed when the Founding Fathers wrote the Constitution.

Q. The Watergate-tapes decision was instrumental in forcing President Nixon to resign. You were appointed by him. What personal feelings did the case generate?

A. I was a Virginia Democrat, and I had met President Nixon only once. I think he nominated me because I was a Southerner. The tapes case deeply disturbed all members of the court. Each was very conscious of its vast importance. There was no square precedent in the history of the country. President Nixon deserves full credit for having recognized the authority of the court. We could have had a constitutional crisis if he had said what President Jackson is reputed to have said once about some decision of the court: “John Marshall has made his decision; now let him enforce it.”

Q. Every term, the Justices hire a small cadre of the top law-school graduates as clerks. Do they write the Justices’ opinions?

A. The chambers vary, but the short answer is no, if you have in mind the final opinion. I’ll be glad to describe what I usually did: before the case was argued, having read the briefs, I would write a memorandum myself in which I summarized how I thought the case should be decided and how the opinion should be written. I would give that to a law clerk who would then give me what we call a bench memo. If the case was assigned to me to write, that law clerk in all probability would submit in triple-space form a draft of an opinion that reflected the views I had already set forth. Before a draft opinion was circulated to the other Justices, all four of my law clerks would review it, and we would all work it over very carefully.

Q. What happened once a draft opinion was ready to circulate?

A. Well, the Justices are free to make comments, and the author of an opinion welcomes comments. Often changes are made in that process, sometimes in order to get a majority. It is often done informally. One Justice will walk to the chambers of another to discuss possible changes.

Q. Has collegiality among the Justices suffered in recent years?

A. The opinions often use language that perhaps is regrettable. But the issues that come to the court are important and difficult, and Justices in dissent are disappointed. When I was nominated, I was concerned that I would not get along very well with some of the Justices in view of what they had been writing about one another. But I found that despite the harsh language, the collegiality is fairly high.

Q. Some say that Justice William Brennan is the court’s master politician. As leader of the court’s shrinking liberal wing, he manages to muster more majorities for liberal results than one might expect.

A. I would never refer to any member of this court as a politician. But I would say this, and I think every member of the court would agree: Bill Brennan is a very attractive and persuasive human being, and also a very able judge. He just celebrated his 84th birthday. He has been here since 1956, and his influence has been profound.

Q. How much do political realities affect the decisions of the Supreme Court?

A. Frequently, there are demonstrations around the court. In our democratic system, that is a plus. But if you are a federal judge appointed for life, you are not likely to be influenced by people marching around the court.

Q. Do the Justices pay attention to the impact of their rulings, and does doing so subsequently alter their views?

A. Well, we all read the newspapers and the magazines. And so we are not isolated from what the public reads and thinks. But there is no direct influence. It is one of the great merits of our system.

Q. What role should the framers’ original intent play in interpreting the Constitution?

A. If one speaks very broadly, original intent is relevant if you can ascertain it. It’s perfectly clear that the Founding Fathers believed in free speech and freedom of religion. But when you get right down to specifics, it was impossible for the Founding Fathers to anticipate the developments of civilization. So I don’t think one gains anything by saying original intent controls. Whether they were endowed with unique wisdom or very good luck — or both — the Founding Fathers blessed us with a Constitution that is brief and broadly phrased.