94-05-18 Biography of Justice Lewis Powell Draws on Personal Files, Interviews for Inside Look at Supreme Court BIOGRAPHY OF JUSTICE LEWIS POWELL DRAWS ON PERSONAL FILES, INTERVIEWS FOR INSIDE LOOK AT SUPREME COURT AND NEW INFORMATION ABOUT POWELL'S VIEWS CHARLOTTESVILLE, Va., May 18 -- A biography of former U.S. Supreme Court Justice Lewis F. Powell Jr., to be published June 2 by Scribner's, is the first book about the behind-the-scenes processes of the Supreme Court to be based on complete access to a justice's private files. Written for non-lawyers, "Justice Lewis F. Powell Jr.," by University of Virginia law professor John C. Jeffries Jr., offers an inside look at the Supreme Court during the 1970s and '80s, when historic, far-reaching cases concerning abortion rights, affirmative action, presidential powers and other issues were decided. The book also discloses new details about Powell's life and views, including that the 86-year-old retired justice has now come to believe the death penalty can't be fairly enforced. Nominated by President Nixon in 1971, Powell was expected to join a conservative bloc of Nixon appointees who would roll back the innovations of the Warren Court. Instead, he emerged as a thoughtful independent, strategically situated at the ideological center of a divided court. Jeffries's biography presents a portrait of a justice who was neither consistently liberal nor rigidly conservative. On the one hand, Powell joined in creating a constitutional right to abortion and in upholding the principle of race-based affirmative action. On the other hand, he rejected constitutional attacks on the death penalty and strongly opposed forced busing. Powell joined the other justices in rejecting President Nixon's claims of absolute executive privilege in the Watergate tapes case, but he fought hard inside the court to make sure that Nixon's defeat did not damage the institution of the presidency. And one year before his retirement, Powell cast the tie-breaking vote against constitutional protection for homosexual sodomy, a decision he came later to regret. Jeffries, who clerked for Powell in 1973-74 at the height of the Watergate crisis, reveals much new information about Powell's career, including: -- Powell's role as chairman of the Richmond School Board during the era of "massive resistance" to desegregation. In public, Powell maintained a conspicuous silence on desegregation, saying nothing one way or the other on the crucial question of the day. In private, however, Powell worked hard to defeat massive resistance, playing a key role to fight it during a turbulent era, Jeffries shows. -- Powell's difficulty in reaching a decision on the homosexual sodomy case. In the famous case of Bowers v. Hardwick, Powell initially voted to strike the Georgia sodomy statute as unconstitutional, then changed his mind and voted to uphold the law. After retirement, he said that he thought his first instinct had been correct. In truth, "Powell never came to rest on the question and remains troubled by it to this day," according to Jeffries. The biography gives the personal story behind Powell's uncharacteristic indecision. -- Powell's change of heart on the death penalty. On the court, Powell voted to uphold the death penalty as constitutional, but now says that he would come out the other way. He told Jeffries in a recent interview that he believes it cannot be enforced fairly and therefore "brings discredit on the whole legal system." A main reason he wrote the book, says Jeffries, was the unprecedented opportunity of having total access to a recent justice's Supreme Court files and private papers. The biography 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. During the five years he worked on the biography, Jeffries never showed any of it to Powell, both because he needed to be "completely independent" in what he wrote and because "I didn't want Powell to feel responsible for anything I said." Jeffries describes how Powell, a former president of the American Bar Association and a prominent Richmond lawyer, was anything but eager to be appointed to the Supreme Court at age 64. He believed that he was too old, too southern and too closely linked to business interests to be confirmed by the Senate. But when President Nixon said it was Powell's "duty" to accept appointment, that was "the magic word." Jeffries identifies a sense of duty as the guiding force in all aspects of Powell's life. Jeffries says that Powell suffered genuine self-doubt about whether he could handle the challenge of the Supreme Court. "Few know Powell well enough to detect the anxiety beneath his self- control, but it was always there," he says. "His long string of achievements were not the fruits of easy confidence." But, "from childhood he had followed a simple strategy. He would work longer, harder, better than anyone else." That was the strategy he applied at the Supreme Court, as he wrestled with the difficulties of abortion, the death penalty, affirmative action and the like. "He always strove to be open- minded," Jeffries says. "Powell had abiding faith in the process of judging," Jeffries writes. His "ingrained courtesy and ability to listen also underlay his most often-remarked judicial attribute -- an instinct for moderation and compromise....For Powell, compromise was not only a necessary feature of a collegial institution; it was a desirable response to a pluralistic society." Powell also is a classic example of the fact that in nominating or approving someone for the Supreme Court, presidents and senators cannot foresee all questions that will come before the court and cannot always predict how the nominee will vote. In Powell's confirmation hearings there were no questions on affirmative action, abortion or presidential powers, issues that soon became pivotal for the country. The example of Powell makes clear, says Jeffries, that "when picking a Supreme Court justice, it is better to pick a person than a point of view." ### May 17, 1994 REPORTERS: For interviews John Jeffries may be reached at (804) 924-3436. Karen A. Castle University News Office kac@uva.pcmail.virginia.edu (804) 924-7116 [Submitted by: Karen A. Castle (kac@uva.pcmail.virginia.edu) Wed, 18 May 94 09:57:57 EDT]