Lewis Powell Dead At 90

Retired Supreme Court Justice Lewis F. Powell, who for 15 years played a pivotal role in shaping American law as a "majority maker" on the high court, died Tuesday at age 90.

Powell cast the controlling votes when the court first upheld the concept of affirmative action and ruled that consenting adults have no constitutional right to engage in homosexual conduct.

Powell died of pneumonia in his sleep at 4:30 a.m. EDT at his home in Richmond, Va., according to a statement released by the court.

In a written statement, President Clinton said that he and the first lady are "deeply saddened by the death of...one of our most thoughtful and conscientous Justices...Justice Powell was an admirable public servant."

Powell's health had waned in recent months. In December, he closed the office he had kept at the Supreme Court building since his 1987 retirement. Poor health prevented his traveling to the nation's capital from his home in Richmond

Although he most often described himself as a conservative, Powell throughout his tenure avoided the rigid ideology that at times isolated the court's liberal and conservative wings.

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The American flag was lowered to half-staff in front of the Supreme Court in Washington.

A wealthy Virginian who reluctantly accepted his appointment to the Supreme Court, Powell cast votes that often controlled the outcome in some of the court's most closely contested and controversial cases.

He considered his controlling opinion in the landmark 1978 "Bakke" case, in which the court for the first time upheld the concept of affirmative action, a highlight of his judicial career.

The court in that case voted 5-4 in ruling that would-be medical student Allan Bakke unlawfully was discriminated against because he was white. But the decision also upheld the use of some race-conscious criteria in medical school admissions policies.

When Powell retired, his fellow justices praised his work and his way of doing business.

"All of us admire your extraordinary capacity to forcefully participate in our private and public debates without ever allowing advocacy to degenerate into contentiousness," they said in a letter to Powell.

In a 1987 article in the Harvard Law Review, Justice Sandra Day O'Connor said of Powell, "I have known no one in my lifetime who is kinder or more courteous than he ... he graced the lives of all who had the privilege o his company and counsel."

Appointed by President Richard M. Nixon in 1971, Powell spoke for the court in a case dating back to Nixon's White House days. By a 5-4 vote, the court ruled that presidents enjoy "absolute immunity" from being sued for monetary damages if their misconduct in office was within their official duties.

Powell also spoke for the court when in 1982 it ruled for the first time on the rights of retarded people in state institutions. Such people have a right to be safe and free from bodily restraints, Powell said.

He provided the pivotal vote when in 1985 the court ruled in a Georgia case that consenting adults have no constitutional right to private homosexual conduct.

After his retirement, he said he "probably made a mistake" by voting that way.

Powell's retirement on June 26, 1987, set off a bitter political battle between President Reagan and the Senate over who was to replace him. Reagan's first choice, Robert H. Bork, had his nomination defeated.

The president's second choice, Douglas H. Ginsburg, had his nomination withdrawn after reports of his using marijuana while a law school professor at Harvard.

Anthony M. Kennedy was installed as Powell's successor Feb. 18, 1988 after the Supreme Court limped through part of its 1987-88 term with eight members.

Powell took senior status rather than resign as a judge when he left the Supreme Court. He subsequently participated as a visiting judge for the 4th U.S. Circuit Court of Appeals, based in Richmond, and in Florida for the Atlanta-based 11th U.S. Circuit Court of Appeals.

Before joining the high court, Powell practiced law in Richmond, where he had grown up. His 34-year career as a prominent attorney there was interrupted by World War II.

In Richmond, Powell served as president of the city's school board and as a member of the Virginia Board of Education. In those positions, he helped smooth the way for the racial desegregation of public schools in compliance with federal court rulings.

The soft-spoken Powell was no stranger to the national legal community when picked to replace the retired Hugo Black. Powell had served as president of the American Bar Association in 1964-65 and of the American College of Trial Lawyers in 1969.

Powell was the wealthiest member of the court during his tenure. He and his wife, Josephine, listed 1985 assets valued between $3.2 million and $6.5 million.

Powell was 64 when Nixon nominated him, and he initially told then-Attorney General John Mitchell that he was too old to start a judicial career. But Powell relented after Nixon called and told him it was his duty to serve.

Powell said at the time, "I go onto the court with deep personal misgivings about whether I will like it. I rather suppose I won't."

Years later, when asked whether he enjoyed being a judge more than a lawyer, Powell said, "I am primarily a lawer. I would rather play the game than be the umpire. I had no ambition to be a judge."

Nixon wrote Powell a "Dear Lewis" letter when the justice retired, recounting his nominating comment that "10 years of Lewis Powell on the court was worth 20 years of anyone else."

"Your superb service has eloquently demonstrated that I was right," Nixon told Powell.

Powell breezed through his confirmation hearings and the Senate vote was 89-1. Sen. Fred Harris, D-Okla., cast the dissenting vote, saying Powell was "an elitist" who had "never shown any deep feelings for little people."

Powell was criticized through the 1970s for refusing to resign from two white-only organizations, the Commonwealth Club and the Country Club of Virginia. He quietly withdrew his membership in both clubs in 1980.

Powell was born in Suffolk, Va., but lived most of his life in Richmond. He received a bachelor's degree from Washington and Lee University in Lexington, Va., before leading his law school class at the same university.

He later earned a master of laws degree from Harvard University.

During World War II, Powell served as a member of a supersecret Allied Unit in Bletchley, England, engaged in cracking German war codes. The existence of the unit was not made public until 1974.

His wife, Josephine, died in 1996. The couple had three daughters and a son. Funeral arrangements were not immediately announced.

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