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Erik Visits an American Grave, Part 297

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This is the grave of Lewis Powell.

Born in 1907 in Suffolk, Virginia to wealthy parents, Powell attended Washington and Lee University and wanted to study the law because he felt lawyers made history. He graduated in 1929 and then finished at the law school at the same school in 1931. He then went to Harvard, where he got a Master of Laws degree in 1932. He rose rapidly in the legal profession and chairman of the ABA’s Young Lawyers Division in 1941. Based out of firm in Richmond, he became one of the nation’s rising corporate lawyers, particularly representing the tobacco industry. He took some time away during World War II, when he was an Army intelligence officer in World War II, notably working on the Ultra project to monitor Axis communications. He became a colonel by the end of the war.

Upon returning to corporate law, Powell rose in part because he was one of many who hated the rise of the regulatory state. He served on the board of Philip Morris beginning in 1964 and thus was the tobacco industry’s top lawyer by the 1960s. Powell routinely argued that tobacco companies’ First Amendment rights were being violated when the media reported that tobacco caused cancer and especially when the media didn’t give as much attention to the industry’s denialism. He was also the president of the American Bar Association from 1964-65. Powell’s firm also represented the defendants in one of the cases that was rolled into Brown v. Board. While Powell didn’t personally work on that case, there’s little question he believed, at the time anyway, that the case was wrongly decided and that segregation should be maintained. As time went on, he did build relationships with black elites, some of whom would later support his Supreme Court nomination.

Just before that Court nomination, Powell issued his infamous memo, telling the business community to start organizing to roll back all those labor, environmental, and consumer regulations. The memo, entitled “Attack on American Free Enterprise System” was a letter to Eugene Syndor, head of the Chamber of Commerce, and was written in 1971. Powell especially hated Ralph Nader, whose work to make GM cars be reasonably safe, written up in 1965’s Unsafe at Any Speed, was especially threatening. Powell thought the consumer movement was a step on the slippery slope to socialism. So by ensuring that American drivers didn’t die from driving American cars, Nader was destroying America. So was the media. Powell considered the growing attention paid by journalists to tobacco-related cancers to be pure socialism.

The Powell Memo is probably overrated compared to the attention it gets. There were lots of preexisting organizations and rich people saying the same things. Corporations were already starting to organize to repeal all those pesky regulations. But the Powell Memo at the very least is a useful document to get at what was happening and how the wave of reform was cresting and a long period of reaction was to follow, which has continued to the present. Powell urged an organized right-wing propaganda campaign, attacking liberal textbooks and creating conservative media networks. All of this, including Powell’s memo, helped lead to the creation of ALEC, to the Koch Brothers’ organized right-wing activism, to people such as Art Pope in North Carolina, to Citizens United.

This memo was not known when Richard Nixon nominated Powell to the Supreme Court in 1971. In fact, Nixon wanted Powell for a seat in 1969, but was turned down because Powell made so much money as a corporate lawyer that he didn’t know if we wanted to live on the salary of a mere Supreme Court justice. But he finally accepted the offer to replace Hugo Black (what a dropoff!). He and William Rehnquist were confirmed by the Senate on the same day. The only vote against Powell was Oklahoma Democrat Fred Harris, an interesting populist in an era of interesting western politicians.

Generally, Powell was a corporate conservative on the Court. There were some exceptions. He was pro-choice, a position brought on when the girlfriend of one of his office staff at the law firm died from a botched illegal abortion. So he was in the majority in Roe. He was also in a 5-4 majority in Plyler v. Doe, which overturned a Texas law denying public education to the children of undocumented immigrants. In some ways, he was a bit like Anthony Kennedy, in supporting right-wing decisions but attempting to say there were cases where he would uphold the other side, even though that was rare. So he had a weird concurring decision in Bakke that went with the majority but claimed there might be room for affirmative action in higher education, a vague standard of his approval that never became clear, at least to my knowledge. On the other hand, he was the deciding vote in Bowers v. Hardwick, which upheld Georgia’s anti-sodomy laws and which was based on Powell’s less than brilliant constitutional principle that he had never met a gay person. This was later overturned and Powell, toward the end of his life, expressed some regret over it. On corporate and business matters though, Powell was a down the line conservative, but most of his specialties were matters that simply didn’t come up before the Court. Overall, Powell was probably less terrible on the Court than his pre-Court record would have led one to expect.

Powell was also a pretty lazy justice. He didn’t have much interest in the legal side of any of this and often wrote his opinions just based on the briefs, leading to a number of decisions with factual errors. On the other hand, he was popular with his fellow justices; Sandra Day O’Connor particularly found him to be a mentor. It was his retirement in 1987 that led to the infamous nomination of Robert Bork and which ended up with Kennedy.

Lewis Powell died in 1998, at the age of 90. He is buried in Hollywood Cemetery, Richmond, Virginia.

This grave visit was supported by LGM reader contributions, for which I am quite grateful. If you would like this series to visit other progenitors of the modern conservative movement, you can donate to cover the required expenses here. Barry Goldwater is in Paradise Valley, Arizona and Lee Atwater is in Columbia, South Carolina. Previous posts in this series are archived here.

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