Justice Powell's Legacy

I meant to link to this last week. My boss has an op-ed in the Legal Times (registration required, blah!) on the legacy of Justice Powell's opinion in Bakke and vote in Bowers as related to the most recent term's decisions in Grutter and Lawrence. She clerked for Powell during the term in which Bowers was decided, and has some interesting insights:

For some of us, Bowers was a debacle not merely because we disagreed with Powell's vote, and some of us did passionately disagree. Rather, the experience haunted us because, when all was said and done, Powell discovered that he disagreed with his own vote. We got it wrong because we failed to help him find the position he wanted to take.

Over the years, we've been asked a lot of questions about Bowers. Trust me, your cross-examinations have been mild compared to the grillings some of us have given ourselves. When working on Bowers, why didn't we think longer, harder, and, for crying out loud, better? Lewis Powell was a great judge because he knew that heaven and earth held more things than he had dreamed of. Before deciding, he (almost) always looked for the holes in his philosophy and experience. For the Bowers clerks, the problem was immediate and excruciating. Powell had worked with gay clerks both before and during the Bowers term. Yet he did not know that he knew gay people. He has been criticized, even derided, for this blind spot. Some of that criticism is fair.

But, in his generation and for many years after, "don't ask, don't tell" was not inscribed merely in military policy. The hearts and minds of a whole culture were in the closet, as were many gay people themselves. But we knew that Powell was vacillating, and he needed our help in understanding the value of gay sex, intimacy, and love. Why didn't we try harder to fill in those blanks for him? If we were too cowardly or uncomfortable to come right out and make him understand, why not make a discreet phone call or two to the justice's former clerks? Perhaps they would speak, give Powell the advice and comfort that he needed, and he would listen. Over the years, I've asked myself these futile "what if" questions, even though it's vain to think that one heroic law clerk might have saved the day.

The registration is worthwhile, as the whole op-ed is pretty fascinating. The influence of individual clerks is hard to assess, but there sure are some interesting stories (see e.g. Edward Lazarus' discussion of Michael Dorf encrypting his computer so that Justice Kennedy's more conservative clerks couldn't interfere with the Casey plurality opinion).