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Justice Powell's decision revisited

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© St. Petersburg Times
published December 8, 2002

"Get Powell." In 1985, this was the message -- the challenge -- blazoned on office doors around the American Civil Liberties Union's Reproductive Freedom Project. When I was an ACLU volunteer fresh out of law school, U.S. Supreme Court Justice Lewis F. Powell Jr. was the high court's swing vote. Every legal brief coming out of the ACLU office was produced to appeal to Powell, and it was my job to pore over his writings and figure out what pressed his buttons.

He was the least ideological member of the court then. Powell was driven by personal experiences and tearjerker stories, not principle. His lack of conviction made him an unimpressive justice -- unpredictable and malleable. But it also gave him a remarkable degree of power, similar to the way Justice Sandra Day O'Connor's pragmatism so often affords her the decisive vote on today's court.

I reflect on those days now because two of Powell's most indefensible decisions are up for review -- one involving affirmative action and the other, the right of homosexuals to engage in sexual relations.

Powell was the fifth vote in University of California Regents vs. Bakke, the 1978 ruling allowing the use of race conscious admissions policies by universities for the purpose of creating racial diversity. Powell's guilty southern roots and his experiences as chairman of the Richmond, Va., school board during the tumult of desegregation were speaking here. While he discontinued the University of California at Davis' quota policy of reserving 16 of 100 seats in each medical school class for minority students, he upheld the use of race as an admissions "plus" factor. When choosing between student applicants of relatively equal merit, Powell approved of giving the edge to the minority in order to bring diversity to the campus.

But throughout the educational landscape, the competition has not been between black and white students of equal qualifications. Instead, a whole separate set of admissions criteria has been applied to minorities, with standards set far below those white students must obtain. Schools use quotas in everything but name -- just the kind of racially discriminatory benefit distribution the 14th Amendment was designed to prevent.

The unfairness Powell's "compromise" has wrought is evident in the cases accepted Monday by the U.S. Supreme Court that involve white students who were passed over for admissions to the University of Michigan Law School and an undergraduate program, in favor of lesser performing minorities. Barbara Grutter, the plaintiff in the law school case, was 43 and mother of two when she applied for admission in 1996. I don't believe Powell would have allowed the state to push her aside in favor of someone with lower grades and test scores because the school wanted people with a different skin color. I think it would have struck him as inherently wrong, particularly since Jim Crow had been dissolved for generations. And I predict Powell's successor in results-oriented decisionmaking, O'Connor, will feel the same way.

The second disastrous ruling of Powell's career was his 5-to-4 majority vote in Bowers vs. Hardwick, the 1986 case upholding a Georgia law prohibiting sodomy. The ruling has allowed states to cast illegitimacy on same-sex relationships to this day.

Powell himself came to realize the mistake he made by siding with the court's bigots such as Rehnquist, who had once equated homosexuals with carriers of contagious diseases from whom the public needs to be protected. In 1990, after his retirement, Powell said, "I think I probably made a mistake in the Hardwick case. . . . When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments."

Tragically, it was Powell's lack of any personal connection with gays that doomed the cause of gay rights during his tenure. While considering the case, Powell told a closeted gay law clerk, "I don't believe I've ever met a homosexual." In fact, he had unknowingly hired at least six gay law clerks.

This term, the high court will revisit Hardwick as it considers Lawrence vs. Texas, a case challenging the constitutionality of a Texas law barring "Homosexual Conduct." O'Connor, who sided with the majority in Hardwick may very well switch sides this time. Her pingpong views would have little to do with the conviction that everyone has the right to keep government out of the bedroom. But she might be swayed by the states' and general public's movement toward acceptance of homosexuality. O'Connor blows with the wind, public sentiment and how she feels that day, just as Powell did. Now Powell's saddest showings are in O'Connor's slippery hands.

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