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Author of Bakke Decision, Dead at 90, is Remembered As Voice of Conscience

Retired U.S. Supreme Court Justice Lewis Powell will be remembered by many in the Jewish community as an important voice of conscience who cast decisive votes on some of the country’s most controversial social issues.

Powell, who died Tuesday at the age of 90, served as a crucial swing vote for 15 years, staking out positions in support of affirmative action, abortion rights and continued separation of church and state.

He wrote the majority opinion in the landmark 1978 affirmative action case, University of California vs. Bakke — the high court’s first endorsement of preferences for racial minorities.

The opinion “limited the worst excesses of affirmative action, and yet allowed the idea to go forward in theory,” said Marc Stern, co-director of the legal department at the American Jewish Congress.

A consistent defender of the constitutional separation of church and state, Powell wrote a concurring opinion in Aguilar vs. Felton, a 1985 decision that banned public school teachers from offering remedial instruction at parochial schools. Powell said there was “too great a risk of government entanglement in the administration of religious schools.”

The Supreme Court reversed that decision last year, saying the practice does not violate church-state separation.

Appointed by President Nixon in 1971 to serve on a deeply divided court, Powell did not share the rigid ideology of his colleagues, siding with the court’s liberal wing in some cases and conservative on others.

He joined the majority in upholding a woman’s right to an abortion in Roe vs. Wade in 1973. He also cast the deciding vote in a 1986 ruling that said consenting adults have no constitutional right to engage in homosexual conduct, but later said he regretted that vote.

Beyond his substantive contributions to American law, Stern said Powell was “unfailingly polite, unfailingly civil and his opinions were never angry or dismissive.”

“There was an attitude of respect for everyone with whom he came into contact.”

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