The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell

Abstract

Justice Lewis Powell often cast the critical fifth vote on a severely divided Supreme Court. In this article, Professor Kahn argues that Justice Powell’s jurisprudence is characterized by a balancing approach that seeks to accommodate competing claims. He asserts that this "representative balancing" methodology derives from Justice Powell's belief that the role of a Justice is to reflect in adjudication the existing distribution of values and authority among the competing factions that constitute the contemporary community. Professor Kahn concludes that representative balancing is an unacceptable foundation for judicial review, because it fails to provide principled explanations for results and, therefore, is open to the charge that it usurps the functions of the political institutions of government.