"A Lawyer Looks at Civil Disobedience: Why Lewis F. Powell, Jr. Divorced Diversity from Affirmative Action," 86 U. Colo. L. Rev. 1229 (2015)

Abstract
This Article reconstructs Lewis F. Powell Jr.'s thoughts on the civil rights movement by focusing on a series of littleknown speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King Jr. Convinced that the law had done all it could for blacks, Powell took issue with King's "Letter from Birmingham Jail," impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell's reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.
+ 2(,1 1/,1(
Citation:
Anders Walker, A Lawyer Looks at Civil Disobedience:
Why Lewis F. Powell Jr. Divorced Diversity from
Affirmative Action, 86 U. Colo. L. Rev. 1229 (2015)
Provided by:
Saint Louis University Law Library
Content downloaded/printed from HeinOnline
Fri Mar 9 13:35:22 2018
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
Use QR Code reader to send PDF to
your smartphone or tablet device
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE:
WHY
LEWIS
F.
POWELL
JR.
DIVORCED
DIVERSITY
FROM
AFFIRMATIVE
ACTION
ANDERS
WALKER*
This
Article reconstructs
Lewis
F.
Powell
Jr.'s
thoughts
on
the
civil
rights
movement
by
focusing
on
a
series
of
little-
known
speeches
that
he
delivered
in
the
1960s
lamenting
the
practice
of
civil
disobedience
endorsed
by
Martin
Luther
King
Jr.
Convinced
that
the
law
had
done
all
it
could
for
blacks, Powell
took
issue
with King's
"Letter
from
Birmingham
Jail,"
impugning
its
invocation
of
civil
disobedience
and
rejecting its
calls
for compensatory
justice
to
make
up
for
slavery
and
Jim
Crow.
Dismissive
of
reparations,
Powell
developed
a
separate
basis
for
supporting
diversity
that
hinged
on
distinguishing
American
pluralism
from
Soviet
totalitarianism.
Powell's
reasons
for
defending
diversity
are
worth
recovering today,
not
least
because
courts
continue
to
misinterpret his
landmark
opinion in
Regents
v.
Bakke,
confusing
the
use
of diversity
in
higher
education
with
the
compensatory
goals
of
affirmative
action,
a
project
that
Powell
rejected.
*
Professor,
Saint
Louis
University
Law
School,
Yale
University
PhD
2003,
Duke
University
JD
1998,
Wesleyan
University
BA
1994.
I
would
like
to
thank
archivist
John
Jacob
at
the
Lewis
F.
Powell,
Jr.
Archives
at
Washington
&
Lee
University
School
of
Law
for
invaluable
assistance
on
this
project.
I
would
also
like to
thank
Erik Luna,
Victoria
A.
Shannon,
Samuel
Calhoun,
Christopher
M.
Bruner,
Brant
J.
Hellwig,
Suzette
Malveux,
Margaret
Howard,
Margaret
Hu,
Timothy
C.
McDonnell,
and the
faculty
at
Washington
& Lee
University
School
of
Law
for
their
comments,
suggestions,
and
critiques;
as
well
as
Melissa
Hart,
Ellen
Katz, Adam
Winkler,
Christopher
W.
Schmidt,
Tom Romero,
Mary
Ziegler,
Ann
Southworth,
Dennis
Parker,
and
the
participants
at
the
2014
Rothgerber
Conference
at
the University
of
Colorado
School
of
Law
for
their
comments
on
the
piece.
UNIVERSITY
OF
COLORADO
LAW
REVIEW
INTRODU
CTION
.......................................................................
1230
I.
POWELL
CRITIQUES
THE
MOVEMENT
........................... 1234
II.
POWELL
ASCENDS
TO
THE
COURT
.................................
1243
III.
PROMOTING
PLURALISM
AND
DIVERSITY
...................... 1246
IV.
M
ISINTERPRETATIONS
.................................................. 1260
C
ON
CLU
SION
..........................................................................
1270
INTRODUCTION
On
a
brisk
spring
day
in
April
1966,
Richmond
attorney
Lewis
F.
Powell
Jr.
mounted
a
measured,
thoughtful
assault
on
the
civil
rights
movement.
Standing
before
an
attentive
audience
at
his
alma
mater,
Washington
&
Lee
University
School of
Law,
Powell
unloaded
a
steady,
forty-five
minute
barrage
against the
movement's
most
visible
leader,
Martin
Luther
King
Jr.,
for
embracing
"reckless"
tactics,
invoking
"irrelevant"
arguments, and
spreading
the
"heresy"
of
civil
disobedience.
1
According
to
Powell,
civil
disobedience
was
"fundamentally
inconsistent
with
the
rule
of
law,"
a
tactic
that
anyone
"trained
in
logic"
should have
"rallied
promptly
to
denounce."
2
Powell
even
mocked
King's
"Letter
from
Birmingham
Jail,"
a
Pauline epistle
that
the
black
leader
had
penned in
an
Alabama
cell
in
1963.3
The
letter
was
part
of a
string
of
protest
actions
that
had
helped
earn
the
minister
international
acclaim,
including
a
Nobel
Peace
Prize
in
1964
for
declaring
that
individuals
had
a
"moral
responsibility
to
disobey
unjust
laws"
and
that
unjust
laws
were
those
that
did
not
square
with
the
"law
of
God."
'4
Powell
found such
claims
baseless.
While
Powell
conceded
that
some
might
find
the
idea
of
a
higher
law
appealing
in
the abstract,
such
notions
could
never
provide
the
I. Lewis
F.
Powell,
Jr.,
A
Lawyer
Looks
at
Civil
Disobedience,
23
WASH.
&
LEE
L.
REV.
205,
205,
208,
224
n.66
(1966).
2.
Id.
at
205.
Whites
who
resorted
to
violence
and "intimidation"
were
not
representative
of
the
South,
argued
Powell,
but
rather
a
"small
and
depraved
minority."
Id.
at
207.
3.
Glenn
Eskew
refers
to
the
letter
as
a
"Pauline epistle"
in
GLENN
T.
ESKEW,
BUT
FOR
BIRMINGHAM:
THE
LOCAL
AND
NATIONAL
MOVEMENTS
IN
THE
CIVIL
RIGHTS
STRUGGLE
244
(1997).
4.
Martin
Luther
King,
Jr.,
Letter
from
Birmingham
Jail,
April
16,
1963,
in
MARTIN
LUTHER
KING,
JR.,
WHY
WE
CAN'T
WAIT
84-85
(1st ed.
1964)
[hereinafter
King,
Letter
from
Birmingham
Jail].
[Vol.
86
1230
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
"basis
for a
system
of
organized
society."
5 To
Powell,
King's
argument
was
"simply
a
doctrine
of
anarchy,"
and
no
one
who
was
"intellectually honest"
could
reasonably
claim
its
use was
warranted
in
the
United
States,
a
clear
jab
at
the
integrity
of
the
black
leader.
6
Powell's speech
against
King
at
Washington
&
Lee
was
no
isolated
rant.
He
mounted
similar
critiques
of
the
black
minister
throughout
the
1960s,
even
using
his
position
as
President
of
the
American
Bar
Association
from
1964
to
1965
to
criticize
the
civil
rights
movement.
7
Yet,
Powell's
critiques
failed
to
garner
much
attention
during
his
confirmation
hearings
and
faded
almost
entirely
from view
once
he
joined
the
Supreme Court
in
1972.8
From
that
point onward,
most
observers
tended
to
view
him
as
a
moderate,
an
individual
who
sympathized
with
aspects
of
the
civil
rights
movement
but
refrained
from
writing
bold
pro-rights
opinions
in
the
interest
of
not
alienating
more
conservative members
of
the
Court.
9
Powell
supporters
downplayed
his
rants
against
King
and.
5.
Powell,
supra
note
1,
at
210.
6.
See
id.
at
208.
For
Powell,
the
letter
"met
the
needs
of
intellectuals
and
theologians
for
a
moral
and philosophical
justification
of
conduct
which,
by
all
previous
standards,
was
often
lawless
and
indefensible."
Id.
at
207.
Only
"reckless
extremists"
would
endorse
such a
position.
See
id.
at
208.
7.
See,
e.g.,
Lewis
F.
Powell,
Jr.,
Respect
for
Law
and
Due Process
-
the
Foundation
of
a
Free
Society,
18
U.
FLA.
L.
REV.
1
(1965);
Powell,
supra
note
1,
at
208;
Lewis
F.
Powell,
Jr.,
Civil Disobedience:
Prelude
to
Revolution?,
40
N.Y.
ST.
B.J.
172
(1968)
[hereinafter
Powell,
Prelude
to
Revolution?].
8.
Powell
tried
to
distance
himself
from
his
early critiques
of
King,
arguing
in
a
note
to
John
Jeffries
that
he
was
primarily
upset
with
King's opposition
to
the
Vietnam
War,
a
position
that
did
not fully account
for
the
fact
that
Powell
criticized
King
long
before
the
civil
rights
leader
came
out
publicly
against
Vietnam.
See,
e.g.,
Letter
from Lewis
F.
Powell,
Jr.
to
Lewis Powell
III
&
John
Jeffries
(June
30, 1981)
(on
file
with Washington
&
Lee Law School
Library)
("I've
kept
these
papers
in
the
event
-
after
my
death
-
there
is
criticism
of
what
I
said
about
King
after
he became
a
Vietnam
activist,
contributing
to
disorder.").
9.
See,
e.g.,
Vincent
Blasi,
Bakke
as
Precedent:
Does
Mr.
Justice
Powell
Have
a
Theory?,
67
CALIF.
L.
REV.
21,
23
(1979)
("One is
tempted
to
assume
that
since
Justice
Powell
stands,
in
one
sense,
'in
the
middle,'
.. ");
Linda
Greenhouse,
Powell:
Moderation
Amid
Divisions,
N.Y.
TIMES,
June
27,
1987,
at
32
("Justice
Powell
was
the
Court's balancer
and
compromiser
....");
Oliver
W.
Hill,
A
Tribute
to
Lewis
F.
Powell,
Jr.,
49
WASH.
&
LEE
L.
REV. 11,
13
(1992)
("Lewis
Powell
has
steadfastly
pursued
the
twin
goals
of
educational
excellence
and
racial
cooperation.");
Paul
W.
Kahn,
The
Court,
the
Community
and
the
Judicial
Balance:
The
Jurisprudence
of
Justice
Powell,
97
YALE
L.J.
1, 1
(1987)
("Powell's
jurisprudence
[was]
characterized
by
a
balancing
approach
that
[sought]
to
accommodate
competing
claims."); J.
Harvie
Wilkinson,
III,
Lewis
F.
Powell,
Jr.-
A
Personal
View,
65
WASH.
&
LEE
L.
REV.
3,
8
(2008)
("Justice
Powell
always
sought
to
soothe feelings
and
to
bridge
differences.").
1231
UNIVERSITY
OF
COLORADO
LAW
REVIEW
looked
instead
to
his
early rejection
of
massive
resistance
to
Brown
v.
Board
of
Education
in
Virginia
in
the
1950s as
evidence
of
his
moderate
credentials,
transforming
him into
an
ally,
not
enemy,
of
King.
'0
Yet,
Powell's
critiques
of
King
and the
Movement
lI
in
the
1960s
are
worth
reconsidering, not
least
because
they
provide
new
insight
into
one
of
his
biggest
contributions
to
constitutional
doctrine:
the
argument
that
race
can
be
factored
into
university
admissions
for
the
sake
of
diversity.
12
This
assertion,
which
Powell
made in
Regents of
the
University
of
California
v.
Bakke
in
1978,
transformed
the
way
that
courts
assessed
overt
racial
classifications
in
the
law,
even
as
it
changed
the
way
that
universities
and
colleges
selected
students
for
their
entering
classes.
13
However, Powell's
reasons
for
invoking
diversity
have
been
grossly
misunderstood.
14
According
to
most accounts,
Powell
invoked
the
language
of
diversity
in
order
to
save
affirmative
action.
15
However,
10.
See
JOHN
C.
JEFFRIES,
JR.,
JUSTICE
LEWIS
F.
POWELL,
JR.
145
(1994).
11.
For
the
sake
of
simplicity,
"Movement"
will
be
used
throughout
this
article
to
reference
the
civil
rights
movement
of
the
1960s.
12.
See
Regents
of
the
Univ.
of
Cal.
v.
Bakke,
438
U.S.
265,
311-21
(1978);
see
also
John
C.
Jeffries,
Jr.,
Bakke
Revisited,
2003
SUP.
CT.
REV.
1,
1-2.
13.
Jeffries,
supra
note
12,
at
2
(noting
that
Powell's
Bakke ruling
"determined" the
constitutionality
of
affirmative
action
in
higher
education
for
the
remainder
of
the
20th
Century).
14.
Id.
at
6-7.
15.
See,
e.g.,
Paul
D.
Carrington,
Diversity!,
1992
UTAH
L.
REV.
1105,
1106
(1992)
(noting
the
adoption
of
diversity
rhetoric
"to
compensate members
of
groups
said
to
be
disadvantaged
by
historic
injustices
to
their
ancestors");
Jim
Chen,
Diversity
and
Damnation,
43
UCLA
L.
REV.
1839, 1848 (1996)
(observing
that
diversity
"has
become
the preferred
euphemism
for
the
d~class6
phrase
'affirmative
action"');
Mark
H.
Grunewald, Quotas,
Politics,
and
Judicial
Statesmanship:
The
Civil
Rights
Act
of
1991
and
Powell's
Bakke,
49
WASH.
&
LEE
L.
REV.
53,
53
(1992)
(describing
Powell's
Bakke
opinion
as
an
act
of
judicial
statesmanship);
Jeffries,
supra
note
12,
at
1
(claiming
that
Powell
"saved"
affirmative
action);
Duncan
Kennedy,
A
Cultural
Pluralist
Case for
Affirmative
Action
in
Legal
Academia,
1990
DUKE
L.J.
705
(1990)
(endorsing
a
case
for
affirmative
action rooted
in
challenging white
supremacy
and
racial
hierarchy);
Sanford
Levinson,
Diversity,
2
U.
PA.
J.
CONST.
L.
573,
575-82
(2000)
(discussing
the
Fifth Circuit's
rejection
of
Powell's definition
of
diversity
in
lieu
of
one rooted
in affirmative action in
Hopwood
v.
Texas,
78
F.3d
932
(5th
Cir.
1996));
Deborah
C.
Malamud,
Affirmative
Action,
Diversity,
and
the
Black
Middle
Class,
68
U.
COLO.
L.
REV.
939,
940
(1997)
(arguing
that
assessments
of
diversity
should
incorporate
an awareness
of
past
discrimination);
Kathleen
Sullivan,
Sins
of
Discrimination:
Last
Term's
Affirmative
Action
Cases,
100
HARV.
L.
REV.
78,
80
(1986)
(arguing
that
the
Supreme
Court
has
tended
to
view
diversity programs
as
"penance
for
the
specific
sins
of
racism
a government,
union,
or
employer
has
committed
in
the
past").
But
see
Derrick
Bell,
Diversity's
Distractions,
103
COLUM.
[Vol.
86
1232
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
Powell's
writings
on
the
civil
rights
movement
reveal
that
he
actually
rejected
affirmative
action
as
a
matter
of
principle,
refusing
to
believe
that
blacks
deserved
compensation
for
either
present
or
past
discrimination.
16
Further,
Powell
endorsed
diversity
in
contexts
that
had
little
to
do
with
educational
quality, suggesting
that
he
did
not
simply
believe
diversity
served
pedagogical
goals,
a
point
that
he
mentioned
in
Bakke.
17
Looked
at
as
a
whole,
Powell's
opinions invoking
diversity
suggest
that
he
celebrated
pluralism
not
because
it furthered
racial
equality
or improved
educational
quality,
but
because
it
advanced
the
goal
of
political
liberty.
18
In
a
string
of
influential
opinions,
of
which
Bakke
was
one, Powell
cast
diversity
(racial,
cultural,
and
institutional)
as
a
frontline
defense
against
state
"orthodoxy"
or
totalitarianism.
19
This was
a
particularly
salient
argument
during
Powell's
tenure
on
the
Court
in
the
1970s
and
80s
due
to
the
Cold
War,
which
pitted
the United
States
against
totalitarian
regimes
like
the
Soviet
Union
and
China.
20
Cold
War
concerns
had
long
occupied
Powell,
as
this
Article
shall
demonstrate,
prompting
him
to
join proponents
of
religious
freedom
in
endorsing
a
vision
of
institutional
pluralism
that
had little
to
do
with
correcting
past
injustice
or
educating youth,
but
rather
preserving
zones
of
freedom
L.
REV.
1622
(2003)
(criticizing
Powell's
diversity
rationale
for
thwarting
the
cause
of
racial
justice).
16.
See
infra Part
1.
17.
Regents
of
the
Univ.
of
Cal.
v.
Bakke,
438
U.S.
265,
312
(1978).
18.
See
infra
Parts
II
&
III.
19.
See
infra
Part
II.
20.
Powell's
take
on
the
Cold
War
differed
starkly
from
the liberal
notion
that
integration
was
part
of
what
Mary
L.
Dudziak
terms
a
"Cold
War
imperative."
See
Mary
L.
Dudziak,
Desegregation
as
a
Cold
War
Imperative,
41
STAN.
L.
REV. 61
(1988).
Instead,
Powell's
views
coincided
much
more
closely
with
Cold
War
theorists
who
described
America
as
pluralist
and
the
U.S.S.R.
and
China
as
mono-
cultural.
Gregory
Smolynec
shows
how
Cold
Warriors
like
George
Kennan
and
John
Higham
argued
that
the
endorsement
of
cultural
pluralism
was
a
logical,
even
necessary,
counterpoint
to
totalitarianism.
See Gregory Smolynec,
Multicultural
Cold
War:
Liberal
Anti-Totalitarianism
and
National
Identity
in
the
United
States
and Canada,
1935-1971
(Apr.
24,
2007)
(unpublished
PhD
dissertation,
Duke
University),
available
at
http://hdl.handle.net/10161/183,
archived
at
http://perma.cc/DBF3-HWBY;
see
also
JOHN
HIGHAM,
SEND
THESE
TO
ME:
JEWS
AND
OTHER
IMMIGRANTS
IN
URBAN AMERICA
196 (1975).
Another
pivotal
work
that
locates
pluralism
in
the
urban
North
is
NATHAN GLAZER
&
DANIEL
PATRICK MOYNIHAN,
BEYOND THE
MELTING
POT:
THE
NEGROES,
PUERTO
RICANS,
JEWS,
ITALIANS,
AND
IRISH
OF
NEW
YORK CITY
(1963).
See
also
PHILIP
GLEASON, SPEAKING
OF DIVERSITY:
LANGUAGE
AND
ETHNICITY
IN
TWENTIETH
CENTURY
AMERICA
(1992).
1233
UNIVERSITY
OF
COLORADO
LAW
REVIEW
against
an
ever-encroaching
state.
21
To
further
explain
Powell's
views
on
diversity,
race,
and
equality,
this
Article
will
proceed
in
three
parts.
Part
I
will
focus on
Powell's
critique
of
the
civil
rights
movement
in
the
1960s,
emphasizing those
aspects
of
his
argument
that
explicitly
addressed
civil
disobedience.
Part
II
will
then
discuss
the
manner
in
which Powell
furthered
his
vision
as
a
Supreme
Court
Justice,
elevating
his
own
version
of
diversity
to
the
Constitutional
plane.
Finally,
Part
III
will
show
how
journalists,
scholars,
and courts
have
tended
to
misinterpret
Powell's
endorsement
of
diversity
in
Bakke,
missing
the
extent
to which
he
linked
it
to
the
compelling
state
interest
of
preserving
liberty.
I.
POWELL
CRITIQUES
THE MOVEMENT
For
almost
a
decade
following
Brown
v.
Board
of
Education,
Lewis
F.
Powell
Jr.
remained
"steadfastly silent"
about
the
civil
rights
movement.
22
He
assured
locals
in
Richmond,
Virginia,
in
1959,
for
example,
that
as
head
of
the
city's
school
board
he
would
not
openly
defy
the
Supreme
Court's
ruling
in
Brown,
nor
would he
close
public
schools.
23
Of
course,
he
also
promised
that
he
would
do
all
that
he
could-
within
legal
bounds-to
preserve
segregation
in
the
city,
a
task
he
assumed
as
head
of
Richmond's
School
Board.
24
For
example,
he
sanctioned
elaborate
"pupil
assignment"
schemes
that
directed
students
to
schools
based
on
factors
that
were
only obliquely
related
to
race,
even
as
he
constructed
new
facilities
to
alleviate
overcrowding
in
single-race
schools.
25
"[I]t
21. See,
e.g.,
Alice
Ristroph
&
Melissa
Murray,
Disestablishing
the
Family,
119
YALE
L.J.
1236,
1241-50
(2010)
(providing
an
overview
of
the
various
ways
in
which
pluralism
has
been
invoked
as
a
defense
against totalitarianism);
see
also
Michael
W.
McConnell,
Establishment
and
Toleration
in
Edmund
Burke's
"Constitution
of
Freedom,"
1995
SuP.
CT.
REV.
393,
425-26;
WILLIAM
A.
GALSTON,
LIBERAL PLURALISM
(2002)
[hereinafter
GALSTON, LIBERAL
PLURALISM].
See
generally
William
A.
Galston,
The
Idea
of
Political
Pluralism,
in
NOMOS
XLIX:
MORAL UNIVERSALISM
AND
PLURALISM
95-124
(Henry
S.
Richardson
&
Melissa
S.
Williams
eds.,
2009)
[hereinafter
Galston,
The
Idea
of
Political Pluralism].
22.
JEFFRIES,
supra
note
10,
at
234.
23.
Lewis F.
Powell,
Jr.,
Statement
on
Behalf
of
the
School
Board
Supporting
Construction
of
the
New
High
Schools
Without
Delay
4-11
(May
6,
1959)
(on
file
with
Washington
&
Lee
Law
School
Library).
24.
Id.
25.
JEFFRIES,
supra
note
10,
at
141.
[Vol.
86
1234
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
is
the
considered
opinion
of
the
Board,"
explained
Powell
in
May
1959,
"that
the
new
schools
would
appreciably
improve
both
the
short
and
long
range
prospect
for
minimizing
the
impact
of
integration."
26
Though
Powell
conceded
that
at
least
some
integration
would be
necessary
to
survive
Supreme
Court
review,
he
tended
to
frame
the
admission
of
small numbers
of
black
students
to
predominantly
white
schools
as
tactical
efforts
aimed
at
preserving
rather
than
transforming
the
status
quo.
27
"We
foresee
no
substantial
integration
in
the
elementary
schools
in
Richmond,"
assured
Powell in
1959.28
Adequate
primary
school
facilities existed
to
run
dual
systems,
and
Richmond
was
prepared
to
construct
new
schools
at
the
high
school
level
to
meet black
demand.
29
Even
as
some
challenged
his
opposition
to
massive
resistance,
30
Powell condoned
a course
of
action
that
kept
black
and
white
students
apart.
By
the
time
he
stepped
down from
his
position as
chair
of
Richmond's
school
board
in
1960,
only
2
of
23,000
black
children
in
Richmond
attended
school
with
whites.
31
While
even
such
negligible
numbers
of
black
students
in
white
schools
angered
hardcore
segregationists,
Powell
cautioned
massive
resisters
to
accept
token
integration
lest
the
federal
government
intervene
further
in
southern
affairs.
32
More
frustrated
were
black
leaders
like Richmond
attorney
Henry
L.
Marsh
III
who
claimed
that
Powell
had
"simply
been
[more]
ingenious
and sophisticated"
than
his
more
radical
white
counterparts
in
preserving
Jim
Crow.
33
Even
more
frustrated
were young
blacks,
including
college
students
in
Richmond
who
gave
up
on
litigation
as
a
means
to
end
segregation
late
in
the
winter
of
1960,
instead
entering
whites-only
eating establishments
and
demanding
to
be
served.
34
Powell
remained silent
on
such
protests,
even
as
they
escalated
to
Freedom
Rides
through
Richmond
in
1961,
to
demonstrations
in
Albany,
Georgia
in
1962
and,
finally,
in
26. Id.
at
9.
27.
See
id.
at
4-11.
28.
Id.
at
7.
29. Id.
30. Id.
at
146.
31.
Id.
at
234.
32.
Powell,
supra
note
23.
33.
JEFFRIES,
supra
note
10,
at
234.
34.
James
Jackson
Kilpatrick,
Editorial,
The
Sitdowns,
RICHMOND
NEWS
LEADER,
Feb.
22,
1960.
1235
UNIVERSITY
OF
COLORADO
LAW
REVIEW
1963,
to
a
massive
campaign
of civil
disobedience
in
Birmingham,
Alabama.
35
During
that
campaign,
local
authorities
arrested
black
minister
Martin
Luther
King
Jr.
and
locked
him in
the
city
jail,
prompting
him
to
write
an
extended
letter
justifying
the
use
of
civil
disobedience
to
effect
legal
reform.
36
King's
"Letter
from
Birmingham
Jail"
garnered
national
attention
when
it
was
published
in
the
Atlantic
Monthly
in
August
1963
and
then
in
a
longer
book by
King
called
Why
We
Can't
Wait
in
1964.
37
The
letter
provided
a
sustained
defense
of
civil
disobedience,
arguing
that
"one
has
a
moral
responsibility
to
disobey
unjust
laws,"
and
that
unjust
laws were
those
that
were
"out
of
harmony"
with
"the
law
of
God."
'38
The
issue
underlying
the
Birmingham
demonstrations
arose
when
a
local
judge issued
a
temporary
injunction
forbidding
"marches,"
"picketing,"
and
"sit-ins" in
Birmingham,
effectively
thwarting
the
civil
rights
movement's
campaign
there.
39
Long
respectful
of
legal
process,
King
and
his
colleagues
decided
to
defy
the
court,
thereby
embarking
on
a
"revolutionary
shift"
in
Movement
tactics,
away
from
efforts
to
uphold
the
"judicial
system"
and
towards
concerted-albeit peaceful-law-
breaking.
40
Disappointed
with
this
move,
a
group
of
local
ministers
wrote
a
letter
criticizing
King's
tactics,
arguing
that
his
radical
approach
was
actually
thwarting interracial
solutions
in
the
region,
a
critique
that
King
dismissed out
of
hand.
41 To
King,
moderates
who
counseled
adherence
to legal
process were
increasingly
becoming
a
roadblock
to
justice,
35.
See
CLAYBORNE CARSON,
IN
STRUGGLE:
SNCC
AND
THE
BLACK
AWAKENING
OF
THE
1960S,
at
31-45, 56-66,
88-89
(1981);
RAYMOND
ARSENAULT,
FREEDOM
RIDERS:
1961
AND
THE
STRUGGLE
FOR
RACIAL
JUSTICE
114,
487-91,
496
(2006);
DAVID
J.
GARROW,
BEARING THE
CROSS:
MARTIN
LUTHER KING,
JR.
AND
THE SOUTHERN
LEADERSHIP CONFERENCE
127-286
(1986).
36.
See
generally
JONATHAN
RIEDER,
GOSPEL
OF
FREEDOM:
MARTIN
LUTHER
KING,
JR.'S
LETTER
FROM
BIRMINGHAM
JAIL
AND
THE
STRUGGLE
THAT
CHANGED
A
NATION
(2013)
(describing
the
events
leading
up
to
and
following
the
"Letter"
and
describing
the
influence
of
the
"Letter"
on
King
and
the
civil
rights
movement).
37. KING,
supra
note
4,
at
64-84;
Martin
Luther
King,
Jr.,
The
Negro
is
Your
Brother,
ATLANTIC
MONTHLY,
Aug.
1963,
at
78-84;
Saunders
Redding,
To
Lift
the
Siege
of
Denial,
N.Y.
TIMES,
July
26,
1964,
at
BR1.
38.
King,
Letter
from
Birmingham
Jail,
supra
note
4.
39. ESKEW,
supra
note
3,
at
237-40.
40.
Id.
at
240
("[A]
deliberate
violation
of
the
law
signaled
a
revolutionary
shift
for
King,
who
had
always
subscribed
to
the
NAACP's
view of
respecting
the
judicial
system.").
41.
KING,
supra
note
4,
at
64;
see
also
ESKEW,
supra
note
3,
at
243-44.
1236
[Vol.
86
2015] A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
prompting
him
to
unleash
a
scathing
indictment
not
just
of
the
Birmingham
ministers
but
white
moderates
in
the
South
generally.
42
"I
must
confess,"
lamented
King,
that
over
the
past
few
years
I
have
been gravely
disappointed
with
the
white
moderate.
I
have
almost
reached
the
regrettable
conclusion
that
the
Negro's
great
stumbling
block
in
his
stride
toward
freedom
is not
the
White
Citizen's
Counciler
or
the
Ku
Klux
Klanner,
but the
white
moderate,
who
is
more
devoted
to
"order"
than
to
justice...
who
constantly
says:
"I
agree
with
you
in the
goal
you
seek,
but
I
cannot
agree
with
your
methods
of
direct
action
.
..
.43
It
was
a
blistering
critique,
but
arguably
one
that
King
had
to
make.
If,
for
example,
he
had
adhered
to
legal
process
in
1963,
the
Birmingham
campaign
would
never have
drawn
the
national
attention
or
support
for
federal
legislation
that
it
ultimately
did.
44
Neither
would
the
Movement's
next
major
campaign, in
the
forgettable
hamlet
of
Selma,
Alabama, where
King would
again
choose
to
violate
an
injunction-this
time
a
federal
one.
45
King's
recurring
disobedience
contributed
directly
to
federal
action-both
the
Civil
Rights
Act
of
1964
and
the
Voting
Rights
Act
of
196546
-which
helps
to
explain
his
contempt
for
moderate
pleas
that
the
Movement
adhere
to
legal
process.
47
However,
if
King hoped
that
his circumvention
of
the
legal
process would
lead
southerners
like Powell
to
side
with
the
Movement, he
was
wrong.
Powell
appeared
particularly
stung
by
King's
jabs
and
began
to
reference
"Letter
from
Birmingham
Jail"
in
a
series
of
increasingly
hostile
speeches
against
King
and
the
Movement.
His
first
was
at
a
Law
Day
address
in
42.
See
King,
Letter
from
Birmingham
Jail,
supra
note
4,
at
87.
43.
Id.
44.
See
ESKEW,
supra
note
3,
at
299-331;
see
also
CLAY
RISEN,
THE
BILL
OF
THE
CENTURY:
THE
EPIC
BATTLE
FOR
THE
CIVIL
RIGHTS
ACT
39-69
(2014).
See
generally
TODD
S.
PURDUM,
AN
IDEA
WHOSE
TIME HAS
COME:
Two
PRESIDENTS,
TWO
PARTIES,
AND
THE
BATTLE
FOR
THE
CIVIL
RIGHTS
ACT
OF
1964
(2014).
45.
See
JACK
BASS,
TAMING
THE
STORM:
THE
LIFE
AND
TIMES
OF
JUDGE
FRANK
M.
JOHNSON,
JR.
AND
THE
SOUTH'S
FIGHT
FOR
CIVIL RIGHTS
238-40
(1993).
46.
GARROW,
supra
note
35,
at
269,
337-40,
380-81, 438-502.
47.
King,
Letter
from
Birmingham
Jail,
supra
note
4,
at
87-88.
1237
UNIVERSITY OF
COLORADO
LAW
REVIEW
Columbia,
South Carolina
on May
1,
1964.48
Noting
recent
"disobedience
of
court
orders,"
"sit-ins,"
"demonstrations," and
"other
racial
disorders
by
adults,"
Powell
announced
to
an
audience
of
attorneys
that,
"it
is
not
surprising
that
crime
and
delinquency
by
children
within the
schools
appear
to
be
increasing
sharply."
49
"[U]nless
our
cherished
system
of
liberty
under
law
is
to
become
a
mockery,"
he
continued,
"the
courts-
rather
than
the
streets-must
be
the
arbiters
of
our
differences."
50
Behind
Powell's
endorsement
of
legal
process
lay
a
larger
concern,
namely
that
procedural
rules
provided
a
check
on
the
unfettered
exercise
of
state
power;
power
that
totalitarian
countries
used
to
repress
their
people.
This
helps explain
why
Powell
raised
the
question
of
procedural
justice
on
Law
Day,
an
event
created
"to
dramatize
the
contrast
with
Communism's
May
Day."
51
For
Powell,
the
occasion
commemorated
the
stark
contrast
between
America's
"freedom
under
law"
and
the
"repressive system
of
Communism"-the
latter
being
a
system
that,
in
his mind,
placed
redistributive
ends
above
procedural
means.52
Powell's
interest
in
Communism
stemmed
at least
as
far
back
as
1958,
when
he
visited
the
Soviet
Union
with
a
delegation
from
the
American
Bar
Association
(ABA).
53
During
this
trip,
he
became
impressed
by
the
strides
that
the
Soviets
had
made
in
education, even
as
he balked
at
the restrictions
imposed
by
the
Soviet
state
on
its
people.
54
"[T]he
entire
educational system"
in
the
Soviet
Union,
noted
Powell,
"is
planned and
operated
with
the
purpose
of
thoroughly
indoctrinating
every child
with
Marxism;
the
theme
that
the
Marxist
always
triumphs
is
an ever
present
one,
and
the
inevitability
and
'justness'
of the 'class
struggle'
is
taught
both
directly
and indirectly.
..
."55
Powell
found
Soviet
schools
to
be
48.
Lewis
F.
Powell,
Jr.,
Law
Day:
A
Time
for
Rededication,
Address
Before
the
South
Carolina
Bar
Association
5
(May
1,
1964)
(on
file
with
Washington
&
Lee
Law School
Library).
49. Id.
50.
Id.
at
7.
51.
Id.
at8.
52.
Id.
at
1-2.
53.
Lewis
F.
Powell,
Jr.,
Report
on
Trip
to
Soviet
Union,
Soviet
Education
-A
Means
Towards
World
Domination
(Sept.
29, 1958)
(on
file
with
Washington
&
Lee
Law School
Library).
54.
Id.
55.
Id.
at
8.
[Vol.
86
1238
2015] A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
direct
evidence
that
"Communism
requires
a
totalitarian
dictatorship,"
where
the
"instrument
of
power is
the
small
minority"
that
imposes
"its
will
upon
the
masses.
'56
Powell drew
a
direct
link
between
totalitarianism
and
civil
disobedience
at
a
meeting
of
the
ABA
in
the
summer
of
1965.
57
He
began
by
lamenting
"the
growing lack
of
respect
for
law
and
for
due
process"
in
America,
noting
that
one
of
the primary
causes
of
civil
unrest
in
the
nation
was
"the
growing belief
that
laws
and
court
orders
are
to
be
obeyed,
constitutional
safeguards
honored,
and
the
rights
of
others
respected
only
so
long
as
they
do
not
interfere
with
the
attainment
of
goals
believed
to
be
just.
5 8 To
illustrate,
he
quoted
one
of
his
predecessors,
Supreme Court
Justice
Hugo
Black,
who
held
that
"[t]hose
who
encourage
minority groups
to believe
that
the
United
States
Constitution
and
federal
laws
give
them
a
right
to
patrol
and
picket
the
streets
whenever
they
choose
in
order
to
advance
what
they
think
to
be
a
just
and
noble
end,
do
not
[sic]
service
to
those
minority
groups,
their
cause
or
their
country."
59
Black
wrote
his
opinion
in
1965
in
response
to
civil
rights
demonstrations
in Baton
Rouge
that
stemmed
directly
from
King's
endorsement
of
civil
disobedience
in
1963.60
However,
Powell
went
further
than
Black
in
condemning
King,
arguing
that
civil
disobedience
invited
totalitarian
rule.
61
"The
fundamental
difference
between
a
totalitarian
society,
and
one
in
which
the
individual
is
afforded freedom
of
conscience
and
protected
from
arbitrary
force,"
explained
Powell,
"is
that
in
the
latter,
'means'
are
of
the
essence.
Under
our
system,
the
'end,'
however
worthy,
should
never
justify
resort
to
unlawful
means."
62
It
was
an
almost
complete
inversion
of
King's
position,
which
was
that
a
narrow-minded
focus
on
lawful
means
almost
certainly
foreclosed
the
pursuit
of
meaningful
ends:
in
this
case
56.
Lewis
F.
Powell,
Jr.,
Notes
on
Panel Program,
National
School
Boards
Association
Meeting
7
(Apr.
26, 1960)
(on
file
with
Washington
&
Lee
Law
School
Library).
57.
Lewis
F.
Powell,
Jr.,
State
of
Law
and
Order,
28
TEX.
B.J.
587,
589-90
(1965).
58.
Id.
at
587-88.
59.
Id.
at
588
(quoting
Cox
v.
Louisiana,
379
U.S.
536,
584
(1965)
(Black,
J.,
concurring
in
part
and dissenting
in
part)).
60.
See
Cox,
379
U.S.
at
575-93
(Black,
J.,
concurring
in
part
and
dissenting
in
part).
61.
See
Powell,
supra
note
57,
at
590.
62.
Id.
1239
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
Barnett
of
Mississippi,
who
also
believed
deeply
in
his
cause
and
was
willing
to
go
to
jail.
' 72 To
illustrate,
he
cited
civil
rights
activist
James
Farmer's
decision
to
protest
injustice
by
staging
"lie-downs"
at
the
World's
Fair
in
New
York.
73
Powell
displayed
little
sympathy
for
such
antics.
"If
valid
breach
of
peace
and
trespass
laws
may
be
violated
at
will
to
protest
these
age
old
infirmities
of
mankind,"
he
maintained,
"rather
than
seeking
to
ameliorate
them
by
lawful
and
democratic processes,
there
would
soon
be
little
left
of
law
and
order.
'74
"Even
the
ebullient
Dr.
King,"
mocked
Powell,
"has
recognized
that
his
theory
is
not 'legal.'
75
Powell
unleashed his
final
salvo on
King
in
1968,76
just
before
the
black
leader
was
killed
on a
motel
balcony
in
Memphis.
77
He
began
by
lamenting
the
explosion
of
riots
in
American
cities,
including
Watts
in
1965,
Cleveland
in
1966,
and
Detroit
in
1967.78
For
Powell,
1967
was
"a
year
of
crises
in
which
the
symptoms
of
incipient
revolution
are
all too
evident.
' 79
The
"revolution,"
as
Powell
explained
it,
was
being
stoked
by
"militant
leaders"
like
H.
Rap
Brown,
a
Louisiana
native
who
also
happened
to
endorse
armed
resistance
to
white
oppression.
80
Brown
became
notorious
for
condoning
inner
city
riots
with
slogans
like
"burn
this
town
down"
and
"stop
singing
and
start
swinging."
81
Powell
had
little
patience
for
such
rhetoric,
arguing
that
what had
begun
as
a
controlled
campaign
to
dismantle
formal
segregation
had
devolved
into
a
much
less
organized
call
for
violent
revolt.
82
To
Powell,
Rap
Brown
was
part
of
a
logical,
if
frightening,
progression-heir
to
the
early,
seemingly innocuous
theories
espoused
by
Martin
Luther
King
Jr.
83
72.
Id.
at
210
(quoting
Burke
Marshall,
The
Protest
Movement
and
the
Law,
51
VA.
L.
REV.
785
(1965)).
73.
Id.
at
216.
74.
Id.
75.
Id.
at
215.
76.
See
Powell,
Prelude
to
Revolution?,
supra
note
7.
77.
GARROW,
supra
note
35,
at
623-24.
78.
See
id.
at
173,
179.
79.
Id.
at
173.
80.
Id.
at
174;
Earl
Caldwell,
Black
Militant:
Focus
on
Rap
Brown,
N.Y.
TIMES,
Aug.
13,
1967,
at
153.
81.
Gene
Roberts,
The
New
S.N.C.C.:
Weaker,
Fierier,
N.Y.
TIMES,
Aug. 20,
1967,
at
45;
Rap
Brown
Calls
Nation
On
'Eve'
of
a
Negro Revolt,
N.Y.
TIMES,
Sept.
11,
1967,
at
76.
82.
See
Powell,
Prelude
to
Revolution?,
supra
note
7,
at
172-73.
83.
Id.
at
173-76.
A
shadow
of
its
former
self,
some
estimated
that
the
1241
UNIVERSITY
OF
COLORADO
LAW
REVIEW
As
Powell saw
it,
King
was
not
a
moral
leader
so
much
as
a
"prophet
of
civil
disobedience"
guilty
of
planting
seeds
of
unrest
by
advancing
specious
theories,
among
them
the
notion
that
some
laws were
"just"
and
others
"unjust,"
and
that
"each
person"
could
"determine
for
himself
which
laws
[were]
'unjust,"'
at
which
point
they
were
"morally
bound.
..
to
violate
the 'unjust'
laws."
84 To
establish
this
point,
Powell
characterized
King's
"Letter
from
Birmingham
Jail"
as
a
call
for
extralegal
means
of
reform
that
amounted
to
"heresy.
'8 5
"It
is
paradoxical," he noted,
[T]hat
this
threat
of
rebellion should
come
at
a
time
of
unprecedented progress towards
equal
rights
and
opportunities
for
Negroes. Moreover,
as
the
New
York
Times
has
stated
editorially:
American
Negroes
"are
economically
the
most prosperous large
group
of
nonwhites
in
the
world,
enjoying
a
higher
average
income
than
the
inhabitants
of
any
nation
in
Africa,
Asia,
or
Latin
America."
8 6
Oddly
reluctant
to
compare
blacks
to
whites
in
the
United
States,
Powell
dismissed African
American
complaints
as
illegitimate
quibbles
over
the
inevitable
inequalities
of
life,
or
what
he
termed
the
"age old
infirmities
of
mankind.
87
Powell's
sense
that
blacks
expected
too
much
stayed
with
him,
even
as
he
won
appointment
to
the
Supreme
Court
of
the
United
States
in
1971.88
There,
he
would
come
to
decide
a
series
of
cases
that
touched
on
racial issues,
decisions
that
many
would
characterize
as
compromises
lacking
a
unified
Student
Nonviolent Coordinating
Committee
(SNCC)
was
down
from
300
to
80
permanent
staff
members
and
running
out
of
money.
Roberts,
supra
note
81,
at
45.
Brown
had
joined
Carmichael
in
taking
the
group
down
a
radically
different
path
from
its
initial
commitment
to
nonviolence
and
political
process
(e.g.,
voter
registration),
turning
instead
to
calls
for
an
armed uprising
against
whites.
Id.
84.
Powell,
Prelude
to
Revolution?,
supra
note
7,
at
172,
174.
85.
Id.
at
172.
86.
Id.
at
176
n.19
(citing
a
New
York
Times
editorial
from
July
24,
1967).
87.
See Powell,
supra
note
1,
at
216.
88.
Powell
rejected
black
claims
for
compensatory
justice
in
a
speech
to
a
group
of
southern
businessmen
in
South
Carolina
in
1970,
arguing
that
"contrary
to
the
guilt-ridden
views
of
those
who
talk
about
reparations
for
past
injustice,"
he
continued,
"a
people
can
fairly
be
judged
only
by
their
record-not
that
of
earlier
generations."
Lewis F. Powell,
Jr.,
The
Attack
on
American
Institutions,
Southern
Industrial
Relations
Conference
21
(July
15,
1970)
(on
file
with Washington
&
Lee
Law
School
Library).
1242
[Vol.
86
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
doctrinal theory.
89
However,
if
Powell's
opinions
on
race
are
read
through the
lens
of
his
aversion
to
compensatory
justice,
then
a
theory
begins
to
emerge:
a
faith
in
pluralism
that
celebrated
racial
difference
but
rejected
efforts
at
forcing
racial
equality,
as
the
next
section
shall demonstrate.
90
II.
POWELL
ASCENDS
TO
THE
COURT
Less
than
four
months
after
Martin
Luther
King
Jr.
died
in
Memphis,
a
panel
of
experts published
a
report
suggesting
that
"Negro
violence"
had
become
so
intense
it
was
likely
to
impact
the
presidential
election
of
1968,
benefitting
candidates
advocating
more
stringent
law enforcement.
91
Though
the
report's contributors
found
that
most
African
Americans
did
not
in
fact
"want
to
overthrow American
society,"
they
nevertheless
concluded
that
the
"revolutionary
rhetoric
of
[black]
extremists"
had
stoked "white
intransigence,"
emboldening
conservatives
to
campaign heavily
on
platforms
emphasizing
law
and
order.
92
Few sold
law
and
order
more
deftly
than
Richard
Milhous
Nixon,
former
Vice
President under
Dwight
D.
Eisenhower
and
longtime
White
House
hopeful.
93
Three
months
before
King's
death,
Nixon
warned
a
banquet
hall
full
of
Manhattan
businessmen
that
"race
conflicts" would
likely
spark
a
"war
in
the
streets"
that
summer.
94
A
recommitment
to
law
and
order,
continued
Nixon, was
the
best
strategy
for
preventing
such
conflagrations-not
poor
people's
campaigns, not
direct
action
protest,
and certainly
not
left-wing
calls
for
restructuring
American
society.
95
Even
a
recent federal
report
on
riots,
issued
by
the
conservative
Kerner
Commission,
struck
Nixon
as
soft,
in
part
because
it
blamed
"everybody for
the
riots
89.
See,
e.g.,
Kahn,
supra
note
9,
at
1.
90.
See
infra
Part
II.
91.
Henry
Raymon,
Whites'
Reaction
to
Riots
Studied:
Panel
Finds
Conservative
Attitudes
Stiffening,
N.Y.
TIMES,
Aug.
29,
1968,
at
35.
92.
Id.
Though
King's
death
swelled
support
for
a
final
civil
rights
act
in
1968,
his
demise
sparked
no
revolution.
DAVID
L.
CHAPPELL,
WAKING
FROM
THE
DREAM:
THE
STRUGGLE
FOR
CIVIL
RIGHTS
IN
THE SHADOW OF
MARTIN
LUTHER KING,
JR.
16-17
(2014).
93.
See
generally
CONRAD
BLACK,
RICHARD
M.
NIXON:
A
LIFE
IN FULL
(2008).
94.
Edward
C.
Burks, Nixon
Sees
Nation
'Torn
Apart'
and
Warns
of
'War
in
Streets
Next
Summer,'
N.Y.
TIMES,
Jan.
9,
1968,
at
21.
95.
TALI
MENDELBERG,
THE
RACE
CARD:
CAMPAIGN STRATEGY,
IMPLICIT
MESSAGES,
AND
THE
NORM
OF
EQUALITY
97-98
(2001).
1243
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
the
1968
presidential
election
and
promised
to
do
so
again
in
1972.
They
balked
at
Brown
but
were
also
reluctant
to
back
Alabama
Governor
George
Wallace,
a
fiery
populist
who
junked
his
motto
"segregation
forever"
in exchange
for
bombastic
appeals
to
"law
and order"
that
even
northern
voters
found
appealing-or
at
least
sufficiently
so
to
put
him
on
the
ballot
in
every
northern
and western
state
in
1968.104
As
Wallace
electrified
angry
northern
crowds,
Nixon
drew
more
genteel
southerners,
like
Powell, to
his
camp.
10 5
Though
Powell
joined
Wallace
in
condemning
civil
disobedience,
he
also
served
on
the
National
Advisory
Committee
on
Legal Services
to
the
Poor
and
thereby
endorsed
legal
representation
for
the
indigent,
a concern
that
struck
many
as
evidence
of
a
sympathetic,
perhaps
even
liberal,
streak.
10 6
However, Powell's
interest
in
representing
the
poor coincided
less
with
liberal
leanings
than
with
his
deep-seated
commitment
to legal
processes,
the
same
commitment
that
had
led
him
to
condemn
King
for
lawlessness.
10 7
Few
recognized
the
degree
to
which
Powell's
interest
in
legal
services
dovetailed
with
his
antipathy
for
King,
conveying
a
firm
rejection
of
radical
political
means
and
even
more
radical,
redistributive
ends.
10 8
Powell
believed
that
the
poor
deserved
representation,
but
he
never
indicated
that
capitalism
itself
warranted
reform.
109
Nixon
could
not
have
found a
scion
of
southern
order
more
eloquent,
more
reasonable, and
ultimately
more
prepared
to
curb
the
contours
of
the
civil
rights
struggle
than
Powell.
Though
deeply
implicated
in
Richmond's
circumvention
of
Brown,
he
fox-trotted
through
his
hearings, transforming
the
gauntlet
of
the
Senate
Judiciary
Committee
into
a
Richmond
1971,
at
25;
MATTHEW
D.
LASSITER,
THE
SILENT
MAJORITY: SUBURBAN
POLITICS
IN
THE
SUNBELT SOUTH
15-16,
101
(2006);
JOSEPH
CRESPINO,
IN
SEARCH
OF
ANOTHER
COUNTRY:
MISSISSIPPI
AND
THE
CONSERVATIVE
COUNTERREVOLUTION
236
(2007).
See
generally
EARL BLACK
&
MERLE
BLACK,
THE RISE
OF
SOUTHERN
REPUBLICANS
(2002).
104.
Raymon,
supra
note
91;
DAN CARTER,
THE
POLITICS
OF
RAGE:
GEORGE
WALLACE,
THE
ORIGINS
OF
THE
NEW
CONSERVATISM,
AND
THE
TRANSFORMATION
OF
AMERICAN
POLITICS
(1995);
LASSITER,
supra
note
103.
105.
JEFFRIES,
supra
note
10,
at
222-28.
106.
For
Powell's views
on
indigent
defense,
see
Lewis
F. Powell,
Jr.,
The
Response
of
the
Bar,
51
A.B.A.
J.
751
(1965).
President
Nixon
personally
called
Powell
on October
21, 1971.
White
House
Concedes
Nixon
Spoke
to
Powell,
N.Y.
TIMES,
Nov.
3,
1971,
at
22.
107.
Powell,
supra
note
106.
108.
See
JEFFRIES,
supra
note
10,
at
197.
109.
See
id.
1245
UNIVERSITY
OF
COLORADO
LAW
REVIEW
cotillion.
110
Critical
to
Powell's
success
was
his
astute
awareness
that
the
civil
rights
movement
had
pushed
far
beyond
what
most
Americans
felt
was
a
reasonable
horizon
of
racial
reform.
1 11
Powell
believed
that
integrating
buses
and
drinking
fountains
was
something
most
Americans
could
accept.
12
Ordering
people's
children
to
suffer
interminable
bus
rides
every
morning
to
achieve
"racial
balance,"
1 3
however,
was
not;
nor
was
rewriting
American
law to
achieve
King's
dream
of
substantive,
poverty-ending,
job-providing,
"compensatory"
equality.
'14
III.
PROMOTING PLURALISM
AND
DIVERSITY
Powell
gained
a
chance
to
elevate
his
views
on
equality
early
in
his
tenure,
when
the
Court
agreed
to
consider
a
Texas
challenge
to
public
school
funding
in
June
1972.115
Styled
San
Antonio
v.
Rodriguez,
the plaintiffs
were
Mexican-Americans
who
lived
in
"school
districts
with
low
property valuations,"
16
prompting
them
to
argue
that
funding
schools
through
local
property
taxes
led
to
gross
inequalities
in
education,
violating
the
Constitution's
guarantee
of
equal protection.
117
In
Texas,
for
example,
students
who
happened
to
live
in
wealthy
school
districts
received
an
average
of $585.00
per
pupil,
while
students
in
poor
districts
averaged
only
$60.00
per
pupil.
118
The
consequent
difference
in
educational
quality,
argued
the
plaintiffs,
was
substantial.
19
Powell
seized
the
case
as
an opportunity
to
engage
the
question
of
persistent
inequality
in
the
United
States.
He
I10.
See
Nominations
of
William
H.
Rehnquist
and
Lewis
F.
Powell,
Jr.:
Hearings
Before
the
S.
Comm.
on
the
Judiciary,
92nd
Cong.
1
(1971),
available
at
https:/www.senate.gov/pagelayout/referenceone-item-and-teasers/SupremeCou
rtNominationHearings.htm,
archived
at
https://perma.cc/Y7QB-LDHH.
111.
See
JEFFRIES,
supra
note
10,
at
210-11.
112.
See
id.
at
211.
113.
See
id.
at
285.
114.
KING,
supra
note
37,
at
124.
115.
San Antonio
Indep.
Sch.
Dist.
v.
Rodriguez,
411
U.S.
1
(1973).
116.
See
Brief
for
Appellants
at
3,
San
Antonio
Indep.
Sch.
Dist.
v.
Rodriguez,
411
U.S.
1
(1973) (No.
71-1332).
117.
See
Brief
for
Appellees
at
3-4,
San
Antonio
Indep.
Sch.
Dist.
v.
Rodriguez,
411
U.S.
1
(1973)
(No.
71-1332);
Memorandum
from
Covert
E.
Parnell,
III,
to
Lewis
F.
Powell,
Jr., 2-3
(June
2,
1972)
(on
file
with
Washington
&
Lee
Law
School
Library).
118.
Memorandum
from
Covert
E.
Parnell,
III,
supra
note
117,
at
2-3.
119.
See
Brief
for
Appellees
at
3-4,
supra
note
117.
[Vol.
86
1246
2015]
A
LAWYER
LOOKS
AT
CIVIL
DISOBEDIENCE
began
by
conceding
that
funding and
education
may
be
linked,
but
argued
that
poor
people
were
not categorically
barred
from
living
in
wealthy
districts.
120
"The
taxable
wealth
of
a
school
district,"
explained
Powell to
his
clerk in
a
private
memo,
"does
not
necessarily
reflect
the
wealth
of
the
citizens
who
reside
in
it.1 21 To
illustrate,
Powell
cited
Sussex
County, Virginia,
where
a
corporation
named
Vepco
had
recently
built
a
nuclear
power
plant
that
substantially
boosted
revenue
from
local
property
taxes.
122
Of
course,
most
poor
children
were
unlikely
to
have
nuclear
plants
bankrolling
their
schools.
As
Powell's
clerk
Larry
Hammond
noted,
by
way
of
example,
the
tax
revenue
per
student
in
the
poor
district
amounted
to
$21
per
student,
while
the
tax
revenue
per
student
in
the
city's
more
affluent
Alamo
Heights
district
amounted
to
$307
per
student.
123
However,
Powell
adhered
to
the
position
that
poverty
alone was
not
the
target
of
state
discrimination.
Some
poor,
he noted,
did
land
in
well-funded
districts,
thereby weakening
the
case
that
wealth
classifications
operated
in
the
same categorical
way
that
racial
classifications
did.
124
Still,
Powell
could
not
deny
that
funding
schools
through
property taxes
yielded
unequal
results,
providing
"less
freedom
of choice
with respect
to
expenditures
for
some
districts
than
for
others."
125
However, even
this
was not
necessarily
a
negative.
In
Powell's
mind,
one
of
the
advantages
of
preserving
inequality
in
school
funding
was
that
it
kept
schools
tied
to
local
communities,
thereby
inhibiting
centralized
state
"control."
12 6
Altering
school
funding,
he
warned,
threatened
to
bring about
"national
control
of
education,"
a
move
that
he
likened
to
communism.
12 7
"I
would
abhor
such control
for
all
the
obvious
reasons,"
complained
Powell,
noting
that
he
had
"in
120.
See
Memorandum
from Lewis
F.
Powell,
Jr.,
to
J.
Harvie
Wilkinson
III
(Aug.
30,
1972)
(on
file
with
Washington
&
Lee
Law
School
Library).
121.
Id.
at
2.
122.
Similar
wealth
existed
in
Richmond,
continued
Powell,
despite
the
fact
that
"the
wealth
per individual
or
family
may
be </