Tuesday, December 16, 2008

Estreicher and Pelham-Webb on Mr. Justice Powell

Samuel Estreicher and Tristan Pelham-Webb, NYU Law School have posted The Wisdom of Soft Judicial Power: Mr. Justice Powell Concurring. The abstract follows:
President Theodore Roosevelt was famous for remarking that one should "talk softly and carry a big stick." Justice Powell did not need a big stick, garnering long-term acceptance of his views by writing soft-spoken concurrences that served to limit the reach of broadly framed majority and plurality opinions. This paper focuses on Powell's ability to influence the path of the law through arguably precedential concurrences as opposed to withholding his vote from the majority and then dissenting. We examine cases during the 1975-1981 Terms when his vote was the fifth vote necessary to form a majority and when his was but the sixth or seventh vote; in our data set, the Powell opinion often was taken by lower courts as stating the holding of the Court. Powell's preference for concurrence and his position as the swing vote during much of his tenure on the Court allowed him to have a significant impact on future courts and cases, and may serve as a salutary example for judges on multimember courts.