Justice Lewis Powell’s Quiet Luxury
From Bakke to SFFA
Lucille A. Jewel
Abstract
This article is anchored by Justice Lewis Powell’s 1978 opinion in Regents of the University of California v. Bakke. Taking a unique interdisciplinary approach, this article pulls together several threads within the Bakke opinion––combining critical race theory, feminist theory, rhetorical analysis, and biographical analysis to forge a new appraisal of the opinion.
In Bakke, Justice Powell condoned affirmative action as a method for achieving diversity in higher education, but rejected the idea that affirmative action could be used as a tool to mitigate the lingering effects of past racial discrimination experienced at the societal level. Before Bakke, it was still possible to imagine that the law could do something substantive about broad-based societal racism. Or, at a minimum, the law might recognize the material reality of societal racism. But all of that was lost when Justice Powell rejected the very idea of societal racism and instead embraced a watered-down conception of racial diversity as the only permissible goal that universities might pursue with race conscious admissions policies.
In one sense, Powell’s Bakke opinion was a lone wolf decision that no other Justice joined. The opinion nonetheless bridged gaps between two polarized Supreme Court blocs and allowed affirmative action to survive, until Students for Fair Admissions v. Harvard overturned Bakke. After 1978, Powell’s reasoning became the rule, but this rule, for a variety of reasons, could not withstand the storm to come. Ironically, Powell’s Bakke decision died at the hands of current Supreme Court Justices put on the bench by a muscular conservative legal movement that Justice Powell himself articulated and theorized.
Powell’s Bakke rhetoric featured formalist tropes about measurement and time while wholly denying, even mocking, the existence of societal racial discrimination. A close reading of the opinion reveals
Powell’s inability to see or comprehend the material realities and experiences of minoritized people of color. Powell’s inability to see the material reality of societal racial discrimination connects to elements in his biography: his adoration of the Confederacy, his elitism, his family and social privilege, his reliance on the hidden labor of women, his fearful reactions to the Cold War, and his prescient exhortations for conservatives to organize and mobilize to turn the United States to the right.
This Article examines Justice Powell as Justice, author, and man. It illuminates a complex law-making alchemy where personal belief, identity, racial and gender privilege, and life experience combined to create a judicial decision that was tenuously binding, but too weak to remain precedential.
This Article proceeds in two main parts. As a foundation to fully understand Bakke, the first part provides a contextualized history of affirmative action, situating DeFunis, Bakke, Grutter, and then SFFA in an arc. That arc bent away from the Warren Court’s robust approach to racial justice remedies and toward conservative and populist theories of color-blind individualism and anti-elitism. The second part conducts a close literary and rhetorical reading of Bakke, looking at the opinion from a variety of interdisciplinary perspectives, including rhetoric, literary theory, and feminist and critical race theory.