110th Anniversary of the Birth of Justice Lewis F. Powell Jr.

Lewis F. Powell Jr. is justifiably identified with Richmond, Virginia. Aside from his U.S. Army service in World War II and his time on the Supreme Court of the United States, he spent his entire life there — with the exception of his first two months of life. As you can read in the clipping below, an accident of family history resulted in his birthplace actually being Suffolk, Virginia.

SuffolkNews-HeraldPowellBirthIn a short time, however, he was ensconced in the house (see below) in the Forest Hill  district of Richmond that would be his home until leaving for college.

PowellForestHillHomeAt any event, he appeared to have been a happy baby.



Powell Archives Turns 25



above — Dean Randall Bezanson, Justice Lewis F. Powell Jr., Chief Justice William H. Rehnquist, Josephine R. Powell at Dedication of the Lewis F. Powell Jr Archives.

Twenty-five years ago, on April 2-4, 1992, ceremonies, dinners and an academic symposium marked the dedication of the Lewis F. Powell Jr. Archives, and of the addition to the law building known as the Powell Wing. Justice Powell and dozens of his family members, personal friends and professional associates were in attendance. Distinguished speakers included Chief Justice William Rehnquist, Judges J. Harvie Wilkinson and Robert Merhige, Powell SCOTUS clerk and biographer John C. Jeffries, former Virginia Governor Linwood Holton and civil rights legend Oliver Hill. Academics presenting at the symposium included Scot Powe, Jean Love, Judith Resnik, Sanford Levinson and Catharine Wells. (Here are some documents related to those events.)

In the intervening quarter century, the Powell Papers have formed the basis of many books and articles, and contributed to hundreds more. Several documentary films have also used these materials.

The archives’ mission and holdings have both greatly expanded since its inception. Its stacks are now home to more than two dozen manuscript collections, the retired administrative records of the law school, the rare book collection and records of student clinical programs.

The first library unit to have a website, the Archives now delivers, to researchers around the world via the Internet, more than 650 complete SCOTUS case files of Justice Powell, along with selected speeches, writings, correspondence and photos from his papers. Significant portions of other manuscript collections, most notably portions of the M. Caldwell Butler Papers and the complete Newton Baker Scrapbooks, have also been digitized and uploaded to our Scholarly Commons.

The Archives is also responsible for records management within the law school. An Archive-It subscription preserves the ever changing content of the law school website. The Archives also created many temporary physical exhibits. Several of these have been preserved in electronic form, and born digital displays are also available. Most recently, the Archives conceived and had professionally fabricated two permanent exhibits, on the late Dean Roy Steinheimer and on the ABA Presidents who are alumni of W&L Law.

The Archives looks forward to its next 25 years of meeting the challenges of a changing records landscape. Something that will remain unchanged, however, will be the primacy of service to students, faculty, administrators and the researching public.


Justice Ginsburg and Justice Powell

Justice Lewis F. Powell Jr. had been a Retired Justice for six years when Ruth Bader Ginsburg was nominated to serve on the Supreme Court. They did, however, have some interactions. On learning of the nomination, Powell wrote to her saying, “Your nomination to fill the vacancy on this Court created by Byron White’s retirement pleases me. … I have admired you dating back many years. I look forward to having you here at the Court.”

Justice Powell was no doubt alluding to Ginsburg’s appearances as an advocate before him and his fellow Justices in such cases as  Frontiero v. RichardsonKahn v. Shevin , Weinberger v. WiesenfeldEdwards v. HealyCalifano v. Goldfarb , and Duren v. Missouri.

Nominee Ginsburg replied with the following note.


Justice Powell’s “Greatest Hit” Turns 45

Most researchers using Justice Lewis F. Powell Jr.’s papers want to view his Supreme Court case files. But the single most requested document is not in a case file, or even in his Supreme Court papers. It is the memorandum he wrote on August 23, 1971, shortly before joining the court, entitled “Attack On American Free Enterprise System”. It is widely known as “The Powell Memorandum” or even more simply, “The Memo.” This Tuesday marks 45 years since Powell mailed this the the president of the American Chamber of Commerce.

Though Powell was a moderate Republican in his time, and many of his views might preclude his membership in that party today, it is often cited as a founding document of The New Right.

This was the first document requested from the archives when it opened in the early 1990s and has remained the most popular single topic of research. It would be requested even more, were it not now so ubiquitously available on the Internet. The only place you can find the memo along with contextual primary resources about its origin, however, is in our Scholarly Commons.

On the 40th anniversary of this document, W&L Law faculty member Lyman Johnson wrote a thoughtful piece that was published in the Richmond Times.  It is reproduced below:


Justice Powell and Free Enterprise

Lyman Johnson

            Today marks the 40th anniversary of the “Powell Memorandum,” written by Lewis F. Powell, Jr. just two months before he was appointed to the United States Supreme Court.  Captioned “Attack on American Free Enterprise System,” as a playbook for combating leftist critiques of capitalism it was addressed to Eugene Sydnor, Chairman of the Education Committee of the U. S. Chamber of Commerce.  Designated “confidential,” the memo’s existence is not widely known, although it has achieved a near-iconic cachet in many conservative circles.  Here at Washington and Lee, where Justice Powell attended college and law school and his professional papers are housed, it is the most frequently requested document from a collection that includes a rich trove of remarkable legal memoirs.  It is a work that is at once easy to understand and easy to misunderstand.


The memorandum is easy to understand because it clearly and forcefully advances a simple thesis:  the American free enterprise system is under attack.  Powell, of course, wrote in the midst of the Vietnam War and at a time when a Communist Soviet Union loomed large on the world stage.  But he took heartfelt aim at another enervating force − what he called the “most disquieting voices” − those internal criticisms of capitalism coming from “perfectly respectable elements of society.”  Of paramount concern to Powell was the college campus, and he spent a good portion of the memorandum decrying the imbalance of ideological views in the university and recommending a host of strong actions in response.  He placed particular emphasis on working to attain more ideological diversity (a point he memorably returned to in his Bakke affirmative action opinion) and hiring high quality conservative faculty members who would generate a more pro-business but decidedly excellent scholarly output.  Today, looking around at American colleges, many conservatives wonder if anything has changed in 40 years.


And Powell did not spare other eminent groups either, as he pointed a lawyerly finger at what he called articulate and prolific, but ignorant, voices in the pulpit, the media, leading intellectual and literary journals, and among politicians.  Of especial concern to Powell in the political realm was what he considered the disturbing demagogic and economically illiterate tenor of discourse that pitted “rich” against “poor” and “business” against the “people.”  He called for a more balanced appreciation of the undoubted benefits brought to the American people by our business sector.  This regrettable polarization in our discourse about the place of business in a democratic society continues today, and business elements likely cheer Powell’s stirring defense of free enterprise, perhaps because so many today seem unable to mount their own compelling case for a system they spend their lives in.  Of course the memorandum is beloved in such circles.


But the memorandum, and the views of the man who wrote it, are easy to misunderstand as well.  Powell was no knee-jerk apologist for an unbridled, money-centered vision of big business.  Powell was both a nuanced thinker and a conservative.  We are trying still in this country to sort out what it means to be both.  Powell, a Virginia patrician to be sure, wished to preserve – and improve – those institutions he considered vital to democratic society.  On the public school front, for example, he chaired the Richmond School Board during the stormy desegregation era of that city and he worked to end the practice of massive resistance in Virginia.  He was President of the Family Service Society, an agency providing aid to those in need.  Civically-engaged and active in the community and bar long before he became President of the American Bar Association, he fervently believed in those private sector venues that, as Robert Nesbet once put it, serve as critical “buffering and mediating forces” between the individual and state.


His conservatism extended into the corporate realm as well.  But it is a strain somewhat forgotten in the business mainstream today, although it has a long lineage.  In the memorandum itself – written a year after Milton Friedman’s famous if simplistic NY Times defense of profit maximization as fully discharging a company’s social responsibility – Powell refers to an executive’s obligation of “maintaining a satisfactory growth of profits, with due regard to the corporation’s public and social responsibilities.”  And in an important 1982 concurring opinion that laid the groundwork for state efforts to successfully craft anti-takeover legislation eventually upheld by the Supreme Court in 1987 – in an opinion Powell himself wrote – he spoke of the “public interest.”  He was concerned about takeovers of small and regional target companies, and about the disruptive effects on local economies caused by abruptly moving headquarters after corporate acquisitions.  The social fabric of a place and the principle of a sometimes market-clogging federalism mattered to Powell.  Unfettered markets were not the highest good to him, or to many other conservatives of a non-libertarian stripe who saw (and see) the roles business and government each can play in advancing the common good.  For Powell, a consummate corporate lawyer, a corporation, whatever it may be at law, was, socially, far more than its stockholders and managers.


Powell could see both sides of an issue, a judicial quality for which he became famous and criticized.  As business leaders and other defenders of free enterprise today remember and rightly laud his spirited defense of capitalism, they should also take to heart his call to attend to their own responsibilities to preserve and enhance the corporate institution’s role in society.  What exactly that means in 2011 is a subject on which we could use a thoughtful and balanced discussion.  And we should attend to it with Powell’s exquisite civility.


Forty Years Ago: Recalling Justice Powell’s Speech on Legal Aid

Forty years ago this month, on August 10, 1976, Justice Lewis F. Powell Jr. delivered an address containing a passage that is perhaps his most frequently repeated quotation.  The occasion was “Legal Services Corporation: A Presidential Program of the Annual Meeting of the American Bar Association” held that year in Atlanta, Georgia.  The subtitle of the event was “Legal Services for the Poor – Looking Ahead” and its sponsors were the Standing Committee on Legal Aid and Indigent Defendants of the ABA, the National Legal Aid & Defender Association, and the Legal Services Corporation. F. William McCalpin, himself a champion of legal aid to the poor,  introduced Powell as “the man singly most responsible for bringing the legal profession of the United States into the modern world of legal aid” during his 1964-65 term as President of the American Bar Association.  On taking the podium, Powell began his speech by recalling another of his speeches, this at the 1965 National Conference on Law and Poverty.  The plainspoken Powell then lapsed into a moment of true eloquence stating, “Equal justice under law is not merely a caption on the facade of the Supreme Court.  It is perhaps the most inspiring ideal of our society. … It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”


The speech went on to trace the history of legal aid in the United States, praise the great progress that had been made in the past eleven years, and to lay out the challenges yet unmet.  Powell was followed by an “English jurist long associated with the cause of legal aid in his country”, Lord High Chancellor Elwyn-Jones, and other speakers closed the program.

But it was Powell’s uncharacteristically soaring passage that has endured.  Putting the exact quotation in a search engine produces some 300 matches in model acts, scholarly articles, books of notable quotations, power point presentations, and captions for legal aid clinics.

More On the Contested Convention of 1924

Following up on the previous entry on this subject, national newspapers and magazines have picked up the theme of parallels between the 1924 and 2016 presidential campaigns. The New York Times wrote a piece yesterday and the New Yorker will have a piece in their March 21 edition. Both pieces mention W&L Law alumnus John W. Davis, and the New Yorker comment includes an amusing anecdote involving another of our most distinguished graduates, Newton D. Baker.


Powell’s Virginia Industrialization Group Papers Now Online


In 1958, a group of Virginia businessmen informally organized for the  purpose of promoting industrial development in the state.  Their first order of business, however, was to convince Governor Almond to keep the public school system open, and to abandon massive resistance to school desegregation.  They reasoned that businesses were unlikely to move to a state without public schools.

Hunton & Williams business attorney and Richmond School Board Chairman, Lewis F. Powell, Jr., was one of these men, and the portion of his papers documenting the operation of this group is now available online. Included here is correspondence, memoranda and printed materials from 1958-1964.

In 1978, when Justice Powell was serving on the Supreme Court, he convinced one of the founders of the Group, Stuart Saunders, former President of the Norfolk and Western Railroad (and later Chairman of the ill-fated Penn Central Railroad), to write an informal history of the organization.  That document is included here, as well.