Today in Supreme Court History: August 25, 1998

8/25/1998: Justice Lewis Powell dies.

Justice Lewis Powell

Comments

[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 their children 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)

[SRG2]

Gray was truly a vile piece of work.

https://en.wikipedia.org/wiki/2006_Richmond_spree_murders

[John F. Carr]

"Circuit Justice has no power to 'exercise supervisory authority' over District Court"

There was a more recent case where the First Circuit (not a Circuit Justice) claimed supervisory authority over District Courts and the Supreme Court was at least dubious about such authority.

[not guilty]

At the time of his appointment to SCOTUS at age 64 by President Nixon, Lewis Powell was a conservative Democrat. I think he is the last justice who was nominated by a president of the opposite political party. No one since Powell has been as old at the time of his nomination.

[Mr. Bumble]

Do conservative Democrats even still exist? Would any Democrat today claim kinship with Powell?

[Sarcastr0]

Both parties have gotten more towards their base.

But only the GOP has such a mania for purity that they're declaring recent Presidents and current Justices of their party to be not 'rea' conservatives.

[Mr. Bumble]

Name someone you think would qualify as a "conservative Democrat" in the mold of Powell.

[Krychek_2]

By the standards of other Western democracies they’re all conservatives. Kamala Harris could not be elected in Canada, the UK, Germany or Japan because she’s too conservative for any of those countries. The notion that they are leftist extremists is just laughable, and shows just how extremist right the politics in this country skews.

[Mr. Bumble]

Did the FDA approve your KoolAid?

[Krychek_2]

Well Bumble, I suppose that once the GOP became the Mussolini party, that the moderates appear leftist extremists by comparison. But that doesn’t mean that objectively they actually are leftist extremists.

[Sarcastr0]

Manchin is the obvious choice. Any of the frontliners the DNC identifies as vulnerable have a good chance.

But did you read what I wrote? There aren’t going to be many.

On the other hand too Robert’s isn’t a liberal Republican by any stretch and you all just hate him anyhow.

[Mr. Bumble]

Funny! You didn't read (or ignored) what I wrote; "Name someone you think would qualify as a “conservative Democrat” in the mold of Powell." and gave a vague response only to claim I didn't read your response. WTF?
Don't bother to respond I have better things to do then read Douche responses.
Enjoy your Sunday out in Whitelandia.

[Sarcastr0]

So when I sad, "Both parties have gotten more towards their base" do you think I wasn't replying to your ask?

I live in the DC Metro area, so not really whitelandia.

You seem extra grouchy today.

[Dan Schiavetta]

When I was in law school (1989 - 1992) Powell was the public face of the Federalist Society. They probably wouldn't even let him in the door today.

[Mr. Bumble]

No mention of that here per Wiki:
"he Powell Memorandum ultimately came to be a blueprint for the rise of the American conservative movement and the formation of a network of influential right-wing think tanks and lobbying organizations, such as the Business Roundtable, The Heritage Foundation, the Cato Institute, Manhattan Institute for Policy Research and the American Legislative Exchange Council (ALEC), and inspired the U.S. Chamber of Commerce to become far more politically active.[19][20][21] CUNY professor David Harvey traces the rise of neoliberalism in the US to this memo.[22][23] Historian Gary Gerstle refers to the memo as "a neoliberal call to arms."[19] Political scientist Aaron Good describes it as an "inverted totalitarian manifesto" designed to identify threats to the established economic order following the democratic upsurge of the 1960s.[24]"

[The Margrave of Azilia]

Yet Powell was deemed a "moderate" because of his stances on "cultural issues."

[not guilty]

Powell gave us a pair of abominable opinions in Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Harlow v. Fitzgerald, 457 U.S. 800 (1982), decided on the same day and arising out of the same damages action.

The pernicious doctrine of qualified immunity for damages actions under 42 U.S.C. § 1983 was cut from whole judicial cloth in Pierson v. Ray, 386 U. S. 547 (1967). Harlow expanded the availability to such immunity, which has since morphed into Frankenstein's monster.

[The Margrave of Azilia]

Then Powell was a true moderate, because Pierson v. Ray was an opinion by Earl Warren. So left-wingers and right-wingers agreed to enable a culture of government impunity.

Moderation = combining the bad ideas of both sides in the interest of harmony and consensus.

[David Nieporent]

You've said this before, but Powell never had anything to do with the Federalist Society.

[JoeFromtheBronx]

Yes. Speaking of nominations generally, Garland was 63, and Ginsburg was 60.

[Mr. Bumble]

FWIW Nixon originally wanted Powell in 1969 but Powell turned him down resulting in Warren Burger being appointed.

[not guilty]

Are you sure that Nixon wanted Powell as Chief Justice? The Fortas vacancy also occurred in 1969, and Nixon nominated two southerners who were rejected by the Senate before Harry Blackmun was confirmed in 1970. I suspect that was the seat that Powell initially turned down.

[Mr. Bumble]

Per his Wiki bio:
"In 1969, Nixon asked him to join the Supreme Court, but Powell turned him down, and Judge Warren Burger of the D.C. Circuit Court of Appeals was appointed instead. "

[JoeFromtheBronx]

The Brethren discusses that Powell was on the shortlist for the seat that eventually went to Blackmun. Powell (then age 62) wrote AG John Mitchell that he was too old to start a new career.

Wikipedia cites that book as a reference for Nixon's second try but the first part of the discussion is wrong.

(Trivia: “Lewis Powell” is also the name of one of the conspirators involved in the Lincoln assassination. No relation, I suppose.)

[not guilty]

The Wikipedia entry is unsourced.

I recall reading in The Brethren by Bob Woodward and Scott Armstrong that Powell was considered for the Fortas vacancy. A 2001 Washington Post article by John Dean (Nixon's then-White House counsel) indicates that Powell was a potential contender for the Fortas seat. https://www.washingtonpost.com/wp-srv/style/longterm/books/chap1/therehnquistchoice.htm

[Mr. Bumble]

Doesn't seem like there are any primary sources to set the record straight.

[Magister]

The guy who wrote the Powell Memorandum was an even slightly surprising pick for a Republican president?

[JoeFromtheBronx]

Justice Robert Trimble also died OTD in 1828.

He only served two terms though his colleagues respected him. Trimble was the first lower court federal judge who became a justice.

His most notable vote was being the deciding vote in Ogden v. Saunders, which involved a rare dissent for CJ Marshall. Trimble in his separate opinion said this about stare decisis:

This being a direct judgment of the Court, overruling the first position assumed in argument, that judgment ought to prevail, unless it be very clearly shown to be erroneous.

When he died, Justice McLean, the future Dred Scott dissenter, filled his seat. It was not as hard to do as replacing Powell.

===

Douglas at one point phrased things in a somewhat dubious matter:

“There are many minorities in the elementary schools of San Francisco; and while the opinion of the District Court mentions mostly the blacks”

A justice is not likely to talk about “the blacks” these days.

[Dan Schiavetta]

https://www.facebook.com/photo/?fbid=2537949692902435&set=a.114529165244512

[Stephen Lathrop]

Anyone ever hear of the Powell Memo? If not, you need to read it. Google brings it right up.

[Mr. Bumble]

Guess you don't read other people's comments.
See above.

[Stephen Lathrop]

Can't read comments until they get posted. Nobody had mentioned it when mine went up.

[F.D. Wolf]

I have always wondered if Justice Lewis Powell, Jr., (or, more precisely, his father) was named after the other famous Lewis Powell, the Lincoln assassination conspirator. Lewis Powell, Sr., was born in Virginia in 1881, just sixteen years after the assassination of President Lincoln, into a family of former Confederates and Confederate sympathizers, who surely had to know of Lewis Powell. (John C. Jeffries, Jr., in his biography Justice Lewis F. Powell, Jr. (1994) writes that Powell, Sr., though born "Lewis", used the spelling "Louis" for most of his life because he once met a man named "Lewis" he did not care for.)

John Wilkes Booth had planned a simultaneous, triple assassination for the night of April 14, 1865, at approximately 10:10 PM, that of President Abraham Lincoln, Vice President Andrew Johnson, and Secretary of State William Seward. (Booth also wanted to assassinate Gen. Ulysses S. Grant, but Grant had left Washington.) He assigned himself to murder Lincoln, George Atzerodt to Johnson, and Lewis Powell to Secretary Seward. Booth, of course, succeeded in his task. Atzerodt had rented the room across the hall from Johnson at the Kirkwood House hotel, but lost his nerve, spending the night getting drunk in the hotel bar.

Lewis Powell was the only Lincoln conspirator who had actually fought in the Civil War. He had been wounded at Gettysburg. His brother had been killed in the War, and another brother had been wounded. Powell was not familiar with Washington D.C., so Booth sent him to Seward's house accompanied by David Herold to help guide him.

Seward was at home, confined to bed, due to a broken jaw and rib he had suffered in a carriage accident on April 5. Powell arrived at Seward's home at 10:10 PM, greeted by Seward's doorman William Bell. Powell claimed he had been sent by Seward's doctor to deliver medicine to the Secretary. Bell offered to take it, but Powell insisted he must see the Secretary personally because he had to transmit directions on the administration of the medicine personally. Powell made his way past Bell and started up the stairs. At the top of the landing, he was confronted by Seward's son Frederick, to whom he repeated his medicine story. Frederick insisted the Secretary could not be disturbed. As they argued, Seward's daughter Fanny emerged from a room. Powell asked, "Is the Secretary asleep?" to which she answered, "Almost." Powell now knew where Seward was.

Frederick was adamant that he would not let Powell see the Secretary. Powell turned as if to leave, then suddenly wheeled around with his gun in Frederick's face. Powell pulled the trigger, but the gun misfired. Rather than simply pull the trigger of his six-shot revolver again, Powell commenced to beating Frederick with it so ferociously, he broke the muzzle. Powell now had no working gun, but still had his Bowie knife. Bell, downstairs, witnessing all this, ran out the front door, yelling for help. Powell pushed himself past Fanny and entered the Secretary's dark room.

Powell, now in a frenzy, jumped atop the bedridden Secretary, knife drawn, and in a furious motion, stabbed downward towards his face. He missed, stabbing the pillow. He stabbed again, missing again in the dark room. He then began madly slashing at the Secretary's face and neck, repeatedly hearing the "clink" of the cloth and metal brace that was holding his jaw together. Fanny was the window, screaming, "Murder! Murder!" Alerted to her screams, her brother Augustus and Sgt. George Robinson, a soldier assigned to protect Seward, charged into the room and began struggling with Powell in the dark, both receiving knife wounds. Powell finally managed to escape, but when he exited the house, he found that his guide Herold had fled in the commotion. Powell was apprehended three days later and executed on July 25, 1865 at the age of 21.

As a postscript, had Johnson died that day, the terms of the Presidential Succession Act of 1792, still in effect at the time, would have thrown the government out of whack. Senate President Pro Tem Lafayette Foster would have served as Acting President until a special election for a new President at the end of 1865, with the new President beginning a full four-year term in 1866. So, instead of a presidential term running concurrently with two Congresses, the presidential term, going forward, would run for the last year of one Congress, the two years of the next Congress, and the first year of a third Congress.