Today in Supreme Court History: August 25, 1998

8/25/1998: Justice Lewis Powell dies.

Justice Lewis Powell

Comments

[The Margrave of Azilia]

At the autopsy, four doctors pronounced him dead, four said he was still alive, and one doctor said Powell was only "mostly dead."

[Vaclav Matthess]

Heh - good one.

[Dan Schiavetta]

Guey Heung Lee v. Johnson, 404 U.S. 1215 (decided August 25, 1971): Douglas denies stay of San Francisco desegregation order as to Chinese ancestry children; holds that Brown v. Board of Education did not apply just to black children, and believes plan was "thoughtful" though not for him to approve it at this stage (stay was sought by Chinese parents who wanted to remain segregated)

Gray v. Kelly, 564 U.S. 1301 (decided August 25, 2011): Roberts denies condemned man's motion to stay not the judgment of death, but the District Court habeas petition scheduling order; Circuit Justice has no power to "exercise supervisory authority" over District Court (defendant's case went up and down the courts and after a final stay was denied he was executed on January 18, 2017; defendant and his nephew had gone on a 7-person killing spree in 2006, including nephew's girlfriend who started as an accomplice and ended up as a victim)

[Frank Drackman]

Another of Tricky Penis's 4 "Conservative" Surpreme Picks, 3 of whom voted for Abortion, which Tricky agreed was needed in certain circumstances, Rape, Incest, Health of the Mother, or if the pregnancy resulted from an Interracial marriage. https://www.huffpost.com/entry/nixon-tapes-abortion-nece_n_219746

[Vaclav Matthess]

There's a good law review article on Lewis Powell and Roe:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2446028
Justice Lewis F. Powell's Baffling Vote in Roe v. Wade
71 Wash. & Lee L. Rev. 925 ( 2014)
Samuel Wolfe Calhoun
Washington and Lee University - School of Law

Date Written: June 4, 2014

Abstract:
This article explores Justice Powell’s vote with the majority in Roe v. Wade. The piece builds upon the unissued 1970 abortion opinion of Judge Henry J. Friendly, who, although personally pro-choice, concluded that the Fourteenth Amendment does not require abortion freedom. The article also presents research from the Powell Archives at Washington and Lee University School of Law.

On its face, Powell’s Roe vote is perplexing due to its inconsistency with his stated philosophy of judicial restraint. Various explanations have been offered, including arguments that a constitutionally protected abortion right is justified (1) as a logical extension of Griswold v. Connecticut, which accorded privacy protection to contraceptive use within marriage; (2) by its “appeal to the future,” i.e., Roe merely expedited the result the country was already steadily approaching; and (3) by empathy for women facing unwanted pregnancies. None of these justifications satisfactorily aligns with Powell’s view of the judicial role. His vote therefore remains baffling.

Justice Powell’s deviation from his own declared principles of restraint is particularly problematic in the context of abortion, perhaps the most intractable legal, religious, moral, and public policy controversy of the last century. Not only did Roe, through an unjustifiably expansive conception of the judicial function, disarm one side politically in this hotly contested dispute, but in doing so the Court also endorsed the other side’s position in the underlying moral debate. Powell’s vote therefore regrettably, but unavoidably, tarnishes his legacy as a proponent of restraint.

[Frank Drackman]

Well he supported the Death Penalty so at least he was consistent

[Stephen Lathrop]

So far, no mention of the Powell Memo. If you haven't yet read it, Google it and read it.

[The Margrave of Azilia]

TL;DR - Corporations are people and fetuses aren't.

[Dan Schiavetta]

I can imagine they argued that Brown addressed the unique history of black people in the U.S., slavery, the "black codes", etc., and didn't apply to the Chinese-American experience. This was Chinese parents making the argument for segregating their children. The Chinese brought with them the scholarly tradition of the world's oldest surviving civilization, and maybe they didn't like being lumped in with African Americans. To them, their children were doing quite all right, unlike the situation in the South where black children barely learning literacy in schools without books or floors.

[Rev. Arthur L. Kirkland]

It wasn't. The current condition is a relatively recent revelation among the right-wing faithful.

[Krychek_2]

Well, Ronald Reagan did sign the bill legalizing abortion in California, as did Nelson Rockefeller in New York.

[David Nieporent]

It was not as big a deal — and more importantly did not divide neatly along party lines the way it does now — but there's a myth circulating nowadays that the opposition was only ginned up later. In fact, the very first Republican platform after Roe called for overturning Roe.

[Dan Schiavetta]

The 1976 platform wanted Roe reversed but wasn’t anti abortion.

The 1970s was when the Reagan - Dole - George HW Bush generation went from pro choice to pro life. (They were pandering to the growing Religious Right. Privately they were still pro choice.)

[Ak Mike]

Actually, if you read Brown, the court focused on feelings of inferiority that black children suffered when they were separated from the white students, relying on psychology journal articles that only covered African Americans. The actual holding thus depended on facts regarding African American children not necessarily present with other minority groups.

[The Margrave of Azilia]

Looks like Asian-americans were segregated legally until 1947, when the segregation law was repealed.

https://www.nps.gov/parkhistory/online_books/5views/5views4h16.htm

Did Chinese-Americans somehow want those laws reinstated?

[Frank Drackman]

and now they have "Blacks Only" College Dorms, Yay Intergration!!!!

[The Margrave of Azilia]

"Privately they were still pro choice"

Why do you think Roe survived as long as it did?