Justice Powell And His Law Clerks

DAVID WESTIN

Those of us who served as his clerks face many of the same difficulties in writing about Justice Powell that people must face in writing about their own parents. On the one hand, who knows better the "real person" behind the public persona? On the other, who can be trusted less to give an unbiased view? The Justice told us from the beginning that he and Mrs. Powell regard us as their own sons and daughters. Over the course of our time in the Powell chambers we indeed became part of the professional "Powell family" with all of the rights and responsibilities that entailed. We enjoyed the most intimate of professional relationships, observing the Justice closely as judge, supervisor, colleague, and friend. This relationship taught Powell clerks much about the man and how he filled the role of Supreme Court Justice. But it also colors anything that we say with the admiration and devotion that we feel for our professional father.

There are those, however, without the bias of a Powell clerk who have recognized the remarkable qualities that the Justice brought to the bench. An example comes out of the Solicitor General's Office, whose lawyers had the opportunity to appear before the Justice in hundreds of cases over his years on the Court, sometimes in victory and sometimes in defeat. I am told that in the middle of the Powell tenure a group of lawyers from the office speculated over which of the Justices they would choose if they were required to take just one to hear and decide all cases. The undisputed choice was Justice Powell.

What is it that has given Justice Powell such stature in the eyes of those who have not had the opportunity to work with him closely as well as those of us who have? Surely part of the answer lies in the respect that lawyers have for a skilled legal craftsman. Whether or not one agrees with the outcome or the reasoning, a Powell opinion stands out for its clarity structure, and essential honesty in dealing with the problems it addresses. The uniformly high quality of Justice Powell's opinions resulted in large part simply from the time and energy he put into them. It is difficult for those who did not see it for themselves to appreciate the extent to which the Justice devoted himself to the work of the Court. During my year with him, Justice Powell would spend six very full days in chambers each week and would carry home substantial work each evening and every Saturday – work that he evidently had spent most of his "free" time dispatching, judging from what his briefcase held each morning when he came to work.

Justice Powell's long hours were certainly not the result of a lack of efficiency His years leading a major law firm had made him extraordinarily able at focussing on the essence and delegating to his office staff, while never abrogating his ultimate responsibility Rather, Justice Powell worked hard because he saw his position as a difficult one requiring much study analysis, and reflection. He considered it his responsibility to understand all aspects of the issues put before him. The procedures he established within chambers illustrate this combination of efficiency and full and fair consideration. When Justice Powell was assigned a majority opinion to prepare, he would appoint one of us to work with him in preparing the first draft. In my own experience, this would lead to the exchange of several drafts back and forth, melding the law clerk's attempts to express the Justice's views with the infamous, lengthy "riders" that the Justice would invariably dictate for insertion and replacement. Once the Justice was satisfied with the draft, another clerk would perform a substantive review, including studying all authorities cited and, often, going back to first principles on the reasoning of the opinion itself This regularly would lead to substantial revisions, to be worked out with the Justice and the clerk originally assigned to the opinion. The revised opinion would then be printed by the Print Shop in the basement of the Court as a "Chambers Draft" to be reviewed and discussed by the Justice with all of the clerks en masse. It was only after all clerks' suggestions had been considered that the opinion would be circulated to the other Justices for their consideration.

The same goal of ensuring full consideration of all points of view determined how Justice Powell approached decision-making. Time after time I watched as he made a conscious effort to keep his mind open right up to the point when the Conference would take a preliminary vote in a case. Occasionally this would prove difficult or impossible, as there were some areas – for example, the public schools – where Justice Powell had done much work and thinking before coming to Court. But even after reaching a preliminary view in a case, Justice Powell was invariably eager to hear arguments against his position and to deal with such arguments fairly In at least one case with which I was involved, I watched as he struggled with the arguments against him, concluded that they could not be disposed of honestly and ultimately changed his initial view (leading to a change in the outcome of the case).

Justice Powell's legal rigor was central to his contribution to the Court and its decisions during his tenure. But taken alone it would tell of only half the man and of less than half of his contribution; in itself, it would not account for the respect he has commanded, such as from the young lawyers in the Solicitor General's Office.

What set Justice Powell apart was the way in which his profound regard for people guided his legal talent and discipline in the cases that came before him. We who served as Powell clerks felt this daily. Anyone who has met Justice Powell can attest to his graciousness and warmth. It is truly remarkable to see that this first impression is only expanded and deepened by working by his side over prolonged periods. As I have suggested, Justice Powell felt deeply the enormous responsibility of serving as a Supreme Court Justice. And the workload of the Court, particularly as the first of June deadline approaches for circulation of all majority opinions, is enormous. Yet the Justice was unfailingly kind, considerate, and understanding toward each of his law clerks. In addition to being a part of his nature, this concern over the interaction with and among his clerks and other staff was . specifically intended. I recall that during my first interview with him I learned that in Justice Powell's eyes nearly all of the several dozen applicants he was considering were intellectually qualified to be his clerk; what he was searching for were the few individuals who would best fit personally with himself, with Sally Smith and his other long-time staff, and with one another. If my year is any sign, Justice Powell succeeded, for my three co-clerks are among my closest friends, as well as being among the lawyers whom I respect the most.

Justice Powell's regard for people went well beyond his chambers. Throughout the Court, wherever we would walk, he would know the names of the employees and would invariably have some ongoing discussion with them, whether about the security guard's duck hunting season or about the elevator operator's convalescing daughter.

The genius of Justice Powell, then, came in the way that he put together what might have appeared in others to be conflicting traits–remarkably high standards pursued under pressure and a sensitivity to the human side of life. For example, one might have expected someone who apparently demanded so much of himself to make some similar demands on his staff. I cannot remember a single instance, however, when Justice Powell ever demanded anything of us. Instead, he simply assumed that we would function at the very highest of our abilities and, as a result, received far more from us than more direct means could have extracted. Failing to meet the demands of an employer is one thing; disappointing a surrogate father is quite another.

The unusual combination of excellence and appreciation for people appears in Justice Powell's written legacy I know that some have suggested that Justice Powell's great strength was also his great weakness – that a great and careful lawyer does not necessarily make a great and timeless jurist. I leave it to scholars and historians to pass on Justice Powell's place in history. History would sorely misjudge this great man, however, if it were thought that the weighing and balancing in his opinions resulted from only a fine lawyers' mind and its propensity to draw fine distinctions. To be sure, his rigor and intellectual honesty made it impossible for him to accept broad, simple rules where he saw that they could not be universally applied. But Justice Powell's approach to jurisprudence resulted from his sense of people and their institutions every bit as much as from his analytic care.

Justice Powell was suspicious of any mechanical or theoretical solution to what he viewed as the complex and subtle problems of humans. From his broad background in dealing with people–in the military as a prominent commercial lawyer, as the head of a school board, as an advisor to Presidents–the Justice experienced first hand many of the situations and dilemmas confronting individuals at all levels of our society In working on particular cases with him I learned of his experiences riding in police cars in the middle of the night in the inner city sitting on the Richmond School Board during desegregation efforts, and helping a poor youth deal with the consequences of an abortion in the world before Roe v. Wade Because Justice Powell was concerned with the individual people involved in such situations, he gained from these experiences a powerful sense of what could and could not be expected of humans and their institutions. Indeed, this very sense formed Justice Powell's views on what guidance and supervision the Supreme Court itself could and could not usefully give. For the Justice, it would have been wrong to set out abstract societal theories in Supreme Court opinions because it would have had the Court go beyond what it, as an institution created and populated by humans, could competently do.

First and foremost, Justice Powell saw people – whether law clerks, support staff, or litigants–as ends in themselves, rather than as mere means to achieve his own ends. He saw it his duty in each case to treat the individual parties before him with fairness and understanding. For those of us who watched him closely, the Justice epitomized the ideal of the competent and unbiased decisionmaker–something that would have made him just as great a judge if had sat on a local court hearing misdemeanors. Because he was called to serve on our highest Court, his wisdom born of rigor and humanity has illuminated the pressing issues of our day to the great benefit of all.