Maltz on Justice Powell's Jurisprudence

Earl Maltz, Rutgers Law School, has posted The Triumph of the Southern Man: Dowell, Shelby County, and the Jurisprudence of the Justice Lewis F. Powell, Jr.:

Justice Lewis F. Powell, Jr. (LC)

The year 2018 witnessed widespread celebrations of the life and legacy of Dr. Martin Luther King, Jr., who was assassinated fifty years ago in Memphis, Tennessee. Yet if Dr. King were alive today, he would no doubt be dismayed by the path taken by the Supreme Court’s treatment of race-related issues in recent years. Not only has the Court abandoned the quest for school desegregation, but the 2013 decision in Shelby County v. Holder substantially reduced the effectiveness of the Voting Rights Act of 1965, which was the most important legislative monument to Dr. King’s efforts.

By contrast, these developments would no doubt have pleased Lewis F. Powell, Jr., a harsh critic of Dr. King who joined the Supreme Court less than four years after King’s death. Prior to taking his seat on the Court, Powell had been openly critical of the decision in Brown v. Board of Education, and in his capacity as chair of the school board of Richmond, Virginia, had worked ceaselessly to limit the pace and scope of the desegregation of the Richmond schools. Moreover, even before joining the Supreme Court, Powell actively sought to limit the impact of the Voting Rights Act on the decisionmaking authority of state and local governments in the South. Similarly, in the cases that came before him, Powell consistently voted to limit the scope of remedial orders in desegregation cases and argued that the Constitution imposed important limits on the scope of congressional authority to deal with the issues that the Voting Rights Act was designed to address.

Powell had only limited success in persuading a majority of his colleagues to support him on these issues. However, the reasoning of the Court’s decisions in the years after Powell left the Court in 1987 have often embraced the arguments made by Powell during his tenure as a justice. This article not only explores Powell’s background and jurisprudence, but also provides the first scholarly discussion of the relationship between his views and the positions currently taken by the Court.

--Dan Ernst