WASHINGTON - Any time the Supreme Court and the nation lose a justice who has stood above the other jurists who have served there, monuments to that influence are lined up to be worshiped, like the solid and towering Druid relics at Stonehenge.

Seldom does an observer stop to shed a quiet tear over a loss of civility and humility. Those qualities were two of the outstanding monuments left by Justice Lewis F. Powell Jr., who died last week at age 90, passing away quietly in his sleep at home in Richmond.

Powell left on the record of American law a mound of judicial

statecraft, some of it of lasting import, much of it speaking with measured reason, a good deal of it with human compassion. Modestly, as was typical of his self-assessments, Powell said upon his retirement in 1987, "I carried my full load on the court during the term now ending." He could have made far greater claims about his service.

Power he held, sometimes in abundance. But almost no one who served with him or observed him on the bench associates Lewis Powell with power - as one did with the late Justice William J. Brennan Jr., or with the court's early giant, Chief Justice John Marshall.

Powell is likely to be remembered as one of the very few - if not the last of - the court's noblest spirits. Therein lay his power as a judge among nine justices.

Two years after his retirement from the court, the justices who had so recently relied upon Powell to show how much better the court works when it is collegial were at each other's throats, loosing personal epithets, some of almost unmentionable pettiness.

A letter found among the justice's papers by his biographer, John C. Jeffries Jr., had been written that year to Powell's son, Lewis III. "I am rather glad I was not on that court," Powell wrote. Another justice, quoted anonymously by Jeffries, remarked that, after Powell retired, there was "less civility than formerly."

On his death last week, seven of the current justices commented about his life, and each stressed the human qualities. Said Justice John Paul Stevens: "Lewis Powell was a true gentleman, a loyal and exceptionally wise man." Justice Ruth Bader Ginsburg remarked, "He lived as the prophet Micah counseled, doing justice, loving goodness and walking modestly with his God." He was, Justice Antonin Scalia remembered, "old-fashioned" in the best sense.

In the paradox that is Justice Powell's record, it was old-fashioned modesty - combined with the professional acumen one of the nation's leading private attorneys and the civilizing instincts he learned as a Virginia gentleman and public citizen - that made him one of history's most influential justices of his time. Those qualities also made him a justice whose solitary vote could control outcomes in even the most divisive cases because he might have gone either way.

He was not unsure of himself. In a 1989 interview with The Sun, he spoke gently of his resentment at the suggestion - he did not say who had made it - that he waited to cast his vote until he saw how his eight colleagues would divide, then chose a side.

Deeply seasoned in the law, he usually knew where he was prepared to stand. Indeed, he said he thought it was his duty to have some notion about how his vote was likely to go. And, he once told an interviewer, "I don't wake up in the middle of the night wishing I'd voted differently."

Open to the arguments

Still, over time, he could - and would - change his mind, because Lewis Powell was not sure that he always was right or that he would remain forever right as times, conditions and perceptions changed.

The conventional wisdom around the courthouse is that, once a justice digs into a position, not even the best of advocates can coax that justice to change. Justices, it is said, do not confess error readily.

But Powell prided himself on remaining open to the arguments that lawyers made before the court, even after he had immersed himself in their written briefs and had come to tentative conclusions about how to vote. The idea that the court might do away with oral arguments was, to him, a heresy. "I would never give up oral argument," he commented.

If a lawyer hoped to win a case that was likely to bring out the divisions within the court, that lawyer would know that he had to begin working toward five votes by trying first to capture Powell's. And though many of Powell's voting habits were consistent and sometimes predictable, his vote seemed to be available for capture.

Those who count his most important decisions as his monuments might overlook lesser precedents, often as closely divided as the big ones would be but decided at a level of stark human simplicity, with Powell helping his colleagues see the homely, real-world consequences.

He was perplexed, for example, that an Ohio city would seek to put a grandmother in jail because she had taken in a 10-year-old grandchild to live with her, in violation of an ordinance defining a family household. He was troubled, too, that Texas would deny public schooling to children because their parents had come into the country as illegal aliens.

Even on some of the major cases, Powell's moderate centrist views, putting him in a position to be the tie-breaking justice, were shaped more by human perception than by philosophy or ideology. He could not make himself understand why a state should think a law should control whether a woman has an abortion. Nor could he accept that a college's attempt to bring in minority students to promote diversity would threaten racial harmony. Or that a white teacher with seniority should lose her job to a black teacher with less service for no reason other than race.

His most controversial vote in a 5-4 case - forming a majority to deny homosexuals constitutional privacy for their consensual sex lives - was borne more of a perception that a Georgia anti-sodomy law was silly and would not be enforced than of the view (held by the other four justices in the majority) that homosexuality was socially and morally reprehensible.

Years later, when he came to understand what that vote had meant to the lives of gay people, he repudiated it.

It is not at all clear that Powell's attitudes, his methods or his decisional monuments abide at the court, or that they will last through history.

Among the current justices, David H. Souter most nearly approximates Powell's personal modesty and diffidence, but Souter has a far more cerebral, sometimes coldly rational legal approach. Justice Stephen G. Breyer can be Powellesque in his manner but is distinctly unlike Powell in the intricate web of reasoning he weaves, on the bench and in his opinions.

On most issues, Justice Sandra Day O'Connor tends to vote as Powell did and probably would, although she sees issues as distinctly more philosophical and ideological than he did. For example, her views against affirmative action, adopted in the first instance under Powell's coaching, have hardened more than his had. She has inherited Powell's standing as the justice whose vote is most avidly sought by lawyers.

Justice Anthony M. Kennedy - who succeeded to Powell's seat - is like Powell in his human perceptions of major issues before the court. That approach probably accounted for Kennedy's abandonment of the idea that the court should do away with abortion rights altogether, and for his personal abhorrence at the idea that a state would try to take away all the rights of gays.

But Kennedy is at times more combative than Powell was and at other times seems to agonize more over hard decisions.

Vulnerable precedents

The major precedents identified with Powell seem, in several instances, quite vulnerable. His approach to affirmative action in college admissions - in the Bakke decision from 1978 - has been repudiated by a federal appeals court in the Hopwood case, and by the people of California in Proposition 209. His successors on the Supreme Court have refused to stop the trend.

Powell's moderate views sometimes favoring, sometimes disfavoring the death penalty have all but given way to a firm majority view that the technical barriers to executions must be significantly lowered.

His conclusion that presidents should not be bothered by the nuisance of civil damage lawsuits has been, in essence if not in pure legal principle, cast aside by a court that was willing to allow Paula Corbin Jones to go ahead with her sexual misconduct case against President Clinton.

His studied skepticism about government-religion dealings - a modern shadow of fellow Virginian Thomas Jefferson's "wall of separation" between the two - is no longer shared by a court majority, and the wall is definitely crumbling.

On the other hand, abortion rights, which Powell fervently supported, remain secure if somewhat narrowed in scope. And the grandmother from East Cleveland, Ohio, and others who cherish their family privacy when the government might intrude, appear to be safe, even without Powell's vote and nurturing support.

There was some irony, then, in the fact that the single vote cast in the Senate against his nomination to the court in 1971 was by a liberal senator who thought Powell would not be sensitive to "little people."

His humane instincts turned many "little people," facing the unsettling winds of the law, into Lewis Powell's sturdy Stonehenge pillars.

Lyle Denniston has covered the Supreme Court for 40 years. He has reported on the court and legal issues for The Sun since

1981. He previously covered the Supreme Court for the Washington Star and the Wall Street Journal.

Pub Date: 8/30/98