Justice Powell's Contributions to the Court

BYRON R. WHITE


Lewis Powell was the sixth new Justice to come to the Court after my arrival, and Justice Anthony Kennedy, who just filled the seat vacated by Justice Powell, is the eleventh. Whenever a new Justice is confirmed, the Court becomes a different instrument than it was. Judging is not a mechanical process but, among other things, an amalgam of ability experience, and substantive views about the nature and role of government in general and the judicial function in particular. Justices are never carbon copies of each other and usually not even close to that description. Inevitably, a new Justice will decide some cases differently from his predecessor, and therefore the Court's product will be different than it would have been without the change in membership. This becomes readily apparent as the months after the new Justice arrives slip by although it takes years really to determine his or her impact on the work of the Court. William 0. Douglas told me soon after I came to the bench that it would be ten years before I had been "around the track" for the first time; only then would I have the feeling that most of the cases presented issues that I had judged before. Likewise, only after such a time can one assess with some confidence how a new Justice has influenced the Court. But it is certain that there will be a significant change, both in the sense that cases are not being decided as they would have been in the past and in the sense that there are departures from prior legal doctrine.

It thus goes without saying that Lewis Powell left his imprint on the Court. The scholarly journals will be full of the details of how and when this occured. I shall just say in general that his impact is as plainly discernable, if not more so, than that of any of the Justices arriving since 1962. Justice Powell, who came directly from the practice, was a very intelligent, experienced and effective

lawyer and Justice. He brought with him an immediate and present knowledge of the practice and could express very current views from the "real world" of the law about the role of the courts, the processes of governing, and the place of Constitutional restraints upon those processes. His views were more than a distant memory of what non-judicial life and thought is like. Judges perhaps can only speculate about the impact of their decisions; but those who have recently been in the trenches have considerably more to say on this subject. Lewis Powell said it in his characteristically quiet but extremely effective way perhaps more effectively than if he had come from ten or fifteen years of service as a federal or state judge.

Justice Powell's work on the Court again illustrated what history has time and again revealed – that prior judicial experience is not a prerequisite for outstanding performance on the Supreme Court. Felix Frankfurter's seminal treatment of the issue, 105 University of Pennsylvania Law Review 781 (1957), as well as the contributions of others, makes this very clear. Moreover, those who are nominated directly from the practice – in any one of its many manifestations – may well exert an influence different from those with years of service on the bench behind them. This is especially true if the nominee's experience, as Lewis Powell's was, is rich and varied.

Justice Powell is the perfect example of why Presidents not only should not confine their choice of Justices to those with judicial experience, but should instead affirmatively strive not to do so–to make sure that new arrivals on the Court include those fresh from the practice and hopefully more nearly reflecting the views of society which, not in the short run by any means, but over time, will have enormous influence on the way the law develops. This is not to disparage the value of judicial experience; those with it in many ways "hit the ground running" when they come here. They are not strangers to judging, and they normally arrive with mature and convincing views on important issues. But this does not gainsay the distinctive contributions that Lewis Powell made to the Court: distinctive in important part because he was fresh from the uncloistered, relatively unstructured, general practice of the law.

Of course, I do not mean to ignore Justice Powell's personal traits, for he was, and is, highly thought of by all of us, and for good reason. He was a very enjoyable colleague, one whom I sought to spend time with, whether at lunch, in the office, or elsewhere. I miss him for those reasons, but also for his views that were molded by a lifetime of experience in practice, dealing directly with those considerations that determine the quality of the country's existence. I'm sure he brought to us something that might have been lost had he been on the bench for years on end before he arrived here.