Powell: a middle-of-the-road jurist

Retiring Justice Lewis F. Powell Jr. has gained a reputation as the pivot, the balancer, the compromiser, and the tipper of the judicial scales. He often cast the deciding vote in a closely divided US Supreme Court ruling. Sometimes he voted with the court's liberals, on issues including abortion and school prayer. He often sided with conservatives on questions of judicial restraint and the right of a state to pass antisodomy laws restricting the activities of homosexuals.

Justice Powell went in several directions in the areas of affirmative action and the death penalty.

He considered the much-heralded Bakke case (Regents of the University of California v. Bakke, 1978) his most important opinion. Here he supported the broad principle of affirmative action but balked at a racial quota for medical school admissions.

``The fatal flaw in ... [a] preferential program,'' he wrote, ``is its disregard of individual as guaranteed by the 14th Amendment.

In a Michigan affirmative action case last year, Powell used the same rationale to strike down a plan aimed at protecting the jobs of black school teachers at the expense of whites with more seniority.

This term, however, the justice from Virginia voted with the court's majority in a California case to uphold hiring preferences for women. And he supported a federal court order requiring that Alabama use a strict racial quota in promoting state troopers to make up for past discrimination against blacks.

Powell dissented in a landmark death-penalty case in 1972 that invalidated capital punishment as it then existed. And he tipped the scales in a key Georgia case this term in which the court upheld a death sentence even if it is applied in a racially biased manner.

But the justice also voted to curb the use of capital punishment, writing for the majority in a 5-to-4 ruling earlier this month that victim-impact statements are inflammatory and cannot be used in sentencing procedures in capital cases.

``Powell's most critical vote came with his decision to resign,'' says constitutional scholar Ronald K.L. Collins. ``By doing so, he sided with the conservatives.''