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Independence Day has come and gone again. The Supreme Court justices are packing up for points past the Beltway, leaving the pundits to pore over their opinions, to tally the votes, tote up the score, and name the MVP of the 2002-03 term. My pick? The Honorable Lewis Powell Jr. By a mile. In the tumultuous final week of the term, the Supreme Court vindicated Justice Powell’s personal assessments of his most famous judicial performance, Regents of University of California v. Bakke (1978), and of his most infamous one, Bowers v. Hardwick (1986). When she remarked that “the ghost of the late Justice Lewis Powell seemed to haunt this Court term,” Supreme Court journalist Nina Totenberg almost got it right. Of course, Lewis Powell wouldn’t be caught dead haunting people, least of all his living colleagues. Haunting is undignified and mean-spirited. Powell was neither. But the ghosts of Bakke and Bowers must have been haunting him. This term has laid those ghosts to rest. By now, many Court-watchers know that Bowers made Powell uneasy. But Bakke? Bakke was Lewis Powell’s pride and joy. After he retired from the Court, Powell called Bakke his “most important opinion.” As John Jeffries Jr. elaborates in his biography of Powell, Bakke was a political masterstroke in the delicate negotiations over the constitutional status of affirmative action in higher education. In Bakke, Powell found a pragmatic way to split the differences between his liberal and conservative colleagues. Why on earth would Bakke haunt him? Bakke haunted Powell because no other justice joined the most crucial portions of his opinion. True, he had hit on a moderate and flexible compromise, one that authorized college officials to take some, but not too much, account of race during the course of their admissions process. The compromise satisfied neither the liberal nor the conservative factions, and it was based on reasoning that was, to put it charitably, a little strained. TEETERING AT THE CENTER But, in practice, the Bakke admissions template seemed to work. Over the years, universities found themselves relying, right and left, on Powell’s affirmative action plan. Likewise, some of the lower courts, as well as a few of Powell’s own colleagues, agreed with his positions on the appropriate standard of review of affirmative action programs, the weight to be given to a university’s desire for a diverse student body, and the permissibility of flexible “goals” as opposed to rigid “quotas.” Powell’s opinion in Bakke teetered at the very center of a deeply divided Court, and the compromise seemed to have captured the heart of the country. Still, the opinion expressed Powell’s views only, and, on these important issues, Powell wanted his opinion to speak for the Court as well as for himself. As for Bowers v. Hardwick, let’s face it: Bowers gave Lewis Powell fits. Powell agonized over his vote in Bowers before, during, and after the formal process of deciding that case. Indeed, he changed his mind about the bottom line in Bowers, not once, not twice, but thrice. Faced (as he so often was) with the responsibility of breaking a deadlock among his colleagues, Powell initially voted with the liberals to strike the sodomy law down. He was deeply skeptical of the notion that the right to privacy could be construed to cover sodomy. For better or for worse, the states had been stigmatizing sodomy — along with other forms of nonmarital, nonprocreative sex — for a very long time. But he was even more appalled at the prospect of imprisoning a person merely for having consensual sex in his own home. So, he concluded, the sodomy statute had to go. Several days later, Powell informed the other justices at conference that he had been pondering his position in Bowers, and, to the consternation of the liberal faction, he reported that he felt compelled to switch sides. Why? His peculiar “cruel and unusual punishments” rationale for invalidating the sodomy statute had not been litigated below or otherwise presented to the Court. Michael Hardwick was not going to jail. Georgia had dropped the charges against him, and the state had no plans to enforce its moribund and irrational law against anyone else. The arguments that Powell had hoped to develop were based on hypothetical facts, as well as on a constitutional theory that was wholly untested. So he now believed that he must line up with the conservative result, but he would publish his own opinion in which he made clear that he believed that the Constitution did provide some protection for gay sex. Yet, by the time Bowers was handed down on June 30, 1986, Powell had shifted his position yet again. He had given up on the idea that he would concur in the judgment only. Instead, he issued a terse statement in which he joined Justice Byron White’s opinion — thereby giving the conservatives the Court — and he made an opaque allusion to potential Eighth Amendment limitations on the state’s power to punish people for having sex. And, as far as Justice Powell was concerned, that should have been the end of the story. He retired at the end of the following term, and he never had any official reason for talking about his vote in Bowers again. STILL HAUNTING HIM Powell may have thought that he was through with Bowers. But Bowers was not yet through with him. I clerked for Justice Powell during the term that Bowers was decided. One of my final assignments was to help the justice wrap up a little speech for the American Bar Association’s Litigation Section. In the speech, he compared and contrasted the decisions of the Warren and the Burger courts, and, as you would expect, his speech emphasized the Court’s most recent accomplishments. Powell described Bowers in passing as a decision that “tested the limits of substantive due process,” and he made a poignant remark that spoke volumes about his lingering sense of indecision. He said, “The case may not be as significant as press reports suggest.” Powell was wrong. Bowers was significant, and he had voted the wrong way. In the years following his retirement, he came to think so himself. Candid and conscientious (almost) to a fault, he was not content to confess error only to himself and his confidants. Rather, he took the extraordinary step of going public with the fact that his vote had been a mistake. So Bowers must have disturbed Powell’s repose. How could it be otherwise? In the concluding days of the Bowers term, Powell also was preoccupied with Bakke. When boiling down the recent affirmative action decisions for his ABA speech, Powell ruefully admitted that the Court had “not yet agreed on a standard generally applicable in affirmative action cases.” Powell was particularly frustrated by the pattern of voting in Wygant v. Jackson Board of Education (1986). In Wygant, race was used as a factor in deciding which employees should be laid off and which retained. A majority of the Court, including Powell, rejected the Wygant plan. Still, Powell had hoped to persuade four of his colleagues to join his opinion in Wygant, a development that he believed might have given Bakke legs and feet. Alas, he had failed. Did he then glimpse the possibility that Bakke might fade away or, worse still, be deliberately cut down? I don’t know. Characteristically kind and cheerful, he told me — To console me? To console himself? — “one day Bakke will be the law of the land.” No matter what you or I or anyone else might think of Bakke‘s limited commitment to repairing the vicious legacy of racism, Powell had no doubt whatsoever that Bakke was right. By the time I knew him, Justice Powell was able to take the long view, though I shudder to think of his reaction to some post- Bakke developments, such as Hopwood v. Texas (1996). Law clerks tend to be short on the long view. Most law clerks are young and inexperienced. We get only one year, one shot at getting it right. “Getting it right” means something special in this context. We weren’t hired to get it right for ourselves but for Justice Powell. Sure, clerks must be prepared to disagree with their boss, to uncover the weak spots in his arguments, not to mention the fatal ones. That way, when he votes, he knows why and what he is voting for. But we are alter egos. The vote is his, not ours. FAILING THE JUSTICE For some of us, Bowers was a debacle not merely because we disagreed with Powell’s vote, and some of us did passionately disagree. Rather, the experience haunted us because, when all was said and done, Powell discovered that he disagreed with his own vote. We got it wrong because we failed to help him find the position he wanted to take. Over the years, we’ve been asked a lot of questions about Bowers. Trust me, your cross-examinations have been mild compared to the grillings some of us have given ourselves. When working on Bowers, why didn’t we think longer, harder, and, for crying out loud, better? Lewis Powell was a great judge because he knew that heaven and earth held more things than he had dreamed of. Before deciding, he (almost) always looked for the holes in his philosophy and experience. For the Bowers clerks, the problem was immediate and excruciating. Powell had worked with gay clerks both before and during the Bowers term. Yet he did not know that he knew gay people. He has been criticized, even derided, for this blind spot. Some of that criticism is fair. But, in his generation and for many years after, “don’t ask, don’t tell” was not inscribed merely in military policy. The hearts and minds of a whole culture were in the closet, as were many gay people themselves. But we knew that Powell was vacillating, and he needed our help in understanding the value of gay sex, intimacy, and love. Why didn’t we try harder to fill in those blanks for him? If we were too cowardly or uncomfortable to come right out and make him understand, why not make a discreet phone call or two to the justice’s former clerks? Perhaps they would speak, give Powell the advice and comfort that he needed, and he would listen. Over the years, I’ve asked myself these futile “what if” questions, even though it’s vain to think that one heroic law clerk might have saved the day. ONE PERSON’S LEGACY Yet the actions of one person can make a difference. In 1978, Lewis Powell stood alone in Bakke, a wise and courageous act from which he never wavered. The Bakke compromise now is enshrined in our law, and Powell would be especially pleased that his dear friend and colleague, Sandra Day O’Connor, wrote Grutter v. Bollinger, giving Bakke a new lease on life (at least for the next 25 years). But Lawrence v. Texas? Surely, Powell gets no credit for that happy outcome. Lawrence overruled a hateful opinion that Powell joined. The authors of Lawrence, as well as the powerful dissenting voices in Bowers, deserve all the credit in the world. But I’m inclined to give Powell credit anyway. Lawrence enshrines the decision that Powell ultimately wished that he had made in Bowers. Sometimes, judges get it right, and, sometimes, they get it wrong. In either case, Powell’s conscientious approach to judging — his humility and flexibility, his quiet but restless soul-searching, his decency and courage — is a model that should and does endure. Bakke is alive. Bowers is dead. The Honorable Lewis Powell Jr., R.I.P. Anne M. Coughlin is the O. M. Vicars professor of law and Class of 1948 research professor at the University of Virginia School of Law. She clerked for Justice Powell from 1985 to 1986.

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