Official portrait of Justice Lewis Franklin Powell Jr.
Twenty years after they first became available to the public, the papers of the late Supreme Court Justice Lewis Powell Jr. are still yielding interesting nuggets. And you don't necessarily have to travel to Washington and Lee University School of Law in Lexington, Va. to find them.
The Powell archives at Washington and Lee, more than other repositories of justices' papers, is putting material online — including more than 200 complete case files from Powell's tenure on the court from 1972 to 1987.
Archivist John Jacob, who has been helping scholars, biographers and journalists sort through the papers since the beginning, has marked the anniversary by opening digital access to more and more documents.
The latest: a typewritten list from 1987 of all of Powell's opinions — annotated by Powell himself, who put check marks next to his favorite, or most important, cases. Yes, the affirmative action landmark Regents of the University of California v. Bakke, was checked, as was First National Bank v. Bellotti, a key 1978 campaign finance decision. But not Booth v. Maryland, one of Powell's final rulings, on the admissibility of victim impact statements in capital cases.
The list, by the way, was compiled by one of his clerks that term, Ronald Mann — now a Columbia Law School professor who argued a case before the Supreme Court on December 3. In a handwritten addendum to the list, Powell described Mann as "one of my exceptional able clerks."
The Powell archive's online openness contrasts somewhat with its early days, said Jacob. The archive was opening its files at about the same time that the controversy over Thurgood Marshall's papers erupted. Marshall's papers opened the day after he died in 1993, far earlier than some of his colleagues would have preferred. "We flew under the radar for awhile," Jacob said, so as not to offend the court.
Powell abided by an informal agreement among some justices, restricting access to case files until after all the justices with whom he served left the court. Any request for files had to be approved by Powell — or Jacob, since Powell's death in 1998. The last sitting justice with whom Powell served is Antonin Scalia.
Jacob said Powell never denied a request for access. Jacob's policy now is to post online any case file that has been requested and approved for disclosure.
Jacob met Powell several times in his later years and has fond memories of their encounters. While circumspect in some ways, Powell had a "strong sense of history" and of the need to make his papers accessible for historical research, Jacob said.
But Powell may not have anticipated that the single most requested document from his files would be the so-called "Powell memorandum" — the 1971 memo he wrote to the U.S. Chamber of Commerce, urging the business community to aggressively defend the free enterprise system in the courts and in the public from the "broad attack" then being made by liberals in academia and the media.
Powell wrote it before becoming a justice, but it has taken on more and more significance ever since, as a "seminal document" in the rise of the conservative movement in America, said Jacob.
"I've gotten requests for the memorandum from academics and from an irate bus driver in Milwaukee," said Jacob. "It has taken on the status of Ayn Rand, it sometimes seems."
