The Adam Clayton Powell, Jr. Litigation

On March 1, 1967, the U.S. House of Representatives by a vote of 307 to 116 refused to seat Adam Clayton Powell, Jr., the re-elected African-American Congressman from Harlem, censured him, fined him $25,000, took away his seniority and declared his seat vacant. The grounds were that he had engaged in conduct unbecoming a Congressman: he had refused to pay a libel judgment ordered by a New York state court, had refused to return to his district except on Sunday in order to avoid service of legal process in that case, had misappropriated congressional travel funds and illegally had paid his wife a congressional staff salary for work she had not done.[1]

Soon thereafter Powell along with 13 of his constituents commenced a lawsuit in the U.S. District Court for the District of Columbia to invalidate his exclusion.  The defendants were John McCormack, who was the Speaker of the House, five other House members and three of its staff.  The complaint alleged that the exclusion violated Powell’s constitutional rights: Powell satisfied the constitutional qualifications for membership (age, citizenship and residency) and the exclusion allegedly was based upon his race and color and thereby violated his rights under the Fifth, Thirteenth and Fifteenth amendments to the Constitution.[2]

Powell’s lawyers were William Kunstler, a famous civil rights lawyer;[3] Arthur Kinoy, another prominent civil rights lawyer and Rutgers Law School Professor;[4] Herbert Reid, another civil rights lawyer and Howard Law School Professor;[5] and others.

The House decided that it did not want the Lyndon Johnson Administration’s Justice Department to defend the House’s leadership because of concern that political considerations would prevent the Department from vigorously asserting what the House believed to be its full constitutional prerogatives. Instead, the House took the recommendation of Emmanuel Celler, the Brooklyn Congressman and Chairman of the House Judiciary Committee, to hire as its attorney, Bruce Bromley, a partner in the New York City law firm of Cravath, Swaine & Moore.[6]

Bromley was a graduate of the University of Michigan and the Harvard Law School. He was a lawyer with the Cravath firm for over 50 years with one interruption. In January 1949, New York Governor Thomas E. Dewey, who had been the unsuccessful Republican presidential candidate the prior year, appointed Bromley to New York’s highest court (the Court of Appeals), but in November 1949, Bromley lost the election for a full term. Although he served on the bench for less than a year, thereafter he was always referred to as “Judge Bromley.” While at Cravath, he was the lead lawyer in successful representation of IBM, General Motors and other major corporations.[7]

For the Powell case, Bromley assembled a team of Cravath lawyers to work on the case, including yours truly. I do not recall what issues I worked on and now wish I had kept a journal about my involvement in this case to refresh my recollection. I do remember that another Cravath associate attorney and member of the team, Dorsey D. Ellis, Jr., was an amateur legal historian and was the primary draftsman of an appendix to the eventual Supreme Court brief that discussed the legislative common law of the British House of Commons and the early state legislatures regarding exclusion and expulsion of members of legislatures.[8] Another Cravath associate on the team, Jay Gerber, recently told me that he remembers the issues on which he worked.

The U.S. District Court for the District of Columbia dismissed the case for lack of subject-matter jurisdiction.[9]  The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal, but on different grounds. It held that the federal courts had subject-matter jurisdiction, but that case was not justiciable, i.e, it was not appropriate for judicial relief because of the separation of powers.[10] The case then went to the U.S. Supreme Court.

Before the Supreme Court argument, the other members of the Cravath team and I went to Washington several days ahead of time to prepare for the argument and to consult with Cravath’s Washington allies and former partners: Lloyd Cutler, who subsequently was White House Counsel for Presidents Carter and Clinton,[11] and John Pickering.[12] Cravath also brought the lawyers’ spouses to Washington on the Sunday before the oral argument in the Supreme Court so that they could watch the proceedings the next day. My wife was on a plane from New York City that Sunday with none other than Congressman Powell.

Although the House’s side had won in the lower federal courts, there were no guarantees that it would prevail in the U.S. Supreme Court. The House was asserting that its power under Article I, Section 5(1) of the Constitution to “be the Judge of the . . . Qualifications of its own members” was an implicit exception from the Article III “judicial Power of the United States [that was] vested in [the Supreme Court]” and the lower federal courts. Thus, the House argued, no federal court had the power to do anything in this case. As a result, it was anticipated that Chief Justice Earl Warren might well ask Judge Bromley in oral argument whether he was claiming that if the House or the Senate hypothetically were to exclude or expel five or six black members-elect in succession that the Supreme Court could do nothing. The answer to this hypothetical question was clearly “yes.”

At the oral argument, as I recall, the Chief Justice in fact asked that question. Bromley’s responded in essence that yes, the Court could do nothing, but that there was no reason to suspect that the House or the Senate might do such a thing and that there was a political remedy by the voters’ re-electing the same people. The Chief Justice and Bromley then got into a colloquy as to which branch of the federal government had the “final” say regarding the Constitution. Bromley said in very limited areas, each house of the Congress had the “final say:” impeachment and removal of federal officials and judging the qualifications of its members. Jay Gerber recalls that the Chief Justice almost fell out of his chair at that answer.

In June 1969, the U.S. Supreme Court, 7 to 1, reversed the dismissal of the lawsuit. The majority opinion by the Chief Justice held that the federal courts had jurisdiction over the subject matter of the case and that it was justiciable; that it did not constitute a political question that pitted one branch of government against another. Rather, it required “no more than an interpretation of the Constitution” by the Supreme Court.[13]

The majority opinion stated that while the House of Representatives was the sole judge of its members’ qualifications (U.S. Const., Art. I, § 5, cl. 1), the House did not have the power to develop qualifications other than those specified in the Constitution: election certificate, at least 25 years of age, U.S. citizen for at least seven years and an inhabitant of the state in which he or she was elected at the time of election (Art. I, § 2. Cls, 1, 2).

In addition, the Court’s majority opinion noted that while the Constitution states (Art. I, § 5, Cl. 2),”Each House [of Congress] shall be the Judge of the . . . Qualifications of its own Members,” the Constitution  immediately states that each “House may . . . with the Concurrence of two thirds, expel a Member.” The Court, therefore, held that the process leading to the expulsion of a Member, duly sworn and enrolled upon the body’s rolls, was the only constitutional method for a House to give effect to its power to determine the qualifications of its members. The House did not follow this procedure with respect to Congressman Powell. Therefore, he was entitled to a declaratory judgment that he had been unlawfully excluded from the Congress.

In the meantime, Powell had won the May 1967 special election to fill his congressional seat, but did not attempt to be seated.  He then won the next regular election in November 1968 and was seated in the House in January 1969 (approximately five months before the Supreme Court decision) subject to the $25,000 fine and loss of seniority. The next year, however, Powell lost the 1970 Democratic primary election to Charles Rangel and failed to qualify to be on the general election ballot.[14]

Powell was a member of a notable Harlem family. His father, Adam Clayton Powell, Sr., was Pastor of the Abyssinian Baptist Church in Harlem (1908-36) before being succeeded by Powell, Jr., his only son (1937-71).[15] Powell. Jr.’s older son, Adam Clayton Powell, III, was a journalist and media executive,[16] and Powell, Jr.’s younger son, Adam Clayton Powell IV, is a New York State legislator who lost the 2010 Democratic primary election for Congress to the incumbent, Charles Rangel.[17]

Powell, Jr. died in 1972 at age 62.


[1]  Powell v. McCormack, 395 U.S. 486, 489-93 (1969); Wikipedia, Powell v. McCormack, http://en.wikipedia.org/wiki/Powell_v._McCormack.

[2]  Powell v. McCormack, 266 F. Supp. 354 (D.C. DC. 1967).

[3]  Wikipedia, William Kunstler, http://en.wikipedia.org/wiki/William_Kunstler.

[4]  Wikipedia, Arthur Kinoy, http://en.wikipedia.org/wiki/Arthur_Kinoy.

[5]  Ravo, Herbert O. Reid, Sr., 75, Lawyer Who Taught Many Black Leaders, N.Y. Times (June 19, 1991).

[6]  Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[7] Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[8]  After Cravath, “Dan” Ellis became a member of the faculty at the University of Iowa School of Law and then Professor, Dean and eventually Dean Emeritus and William R. Orthwein Distinguished Professor of Law Emeritus at the University of Washington in St. Louis School of Law. (Washington University in St. Louis, Dorsey Ellis, http://news.wustl.edu/people/Pages/DorseyEllis.aspx.

[9]  Powell v. McCormack, 266 F. Supp. 354 (D.C. D.C. 1967).

[10]  Powell v. McCormack, 395 F.2d 577 (D.C. Cir. 1968).

[11]  Wikipedia, Lloyd Cutler, http://en.wikipedia.org/wiki/Lloyd_Cutler.

[12]  Wikipedia, John H. Pickering, http://en.wikipedia.org/wiki/John_H._Pickering.

[13]  Powell v. McCormack, 395 U.S. 486 (1969).

[14]  Wikipedia, Adam Clayton Powell, Jr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Jr.; Biographical Dictionary of the United States Congress, “Powell, Adam Clayton, Jr.,” http://bioguide.congress.gov/scripts/biodisplay.pl?index=p000477

[15] Wikipedia, Adam Clayton Powell, Sr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Sr.; Abyssinian Baptist Church, History, http://www.abyssinian.org/about-us/history/.

[16]  Wikipedia, Adam Clayton Powell III, http://en.wikipedia.org/wiki/Adam_Clayton_Powell_III.

[17]  Wikipedia, Adam Clayton Powell IV (Politician),  http://en.wikipedia.org/wiki/Adam_Clayton_Powell_IV_(politician).

The Roads Not Taken


“Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.”[1]

 

In earlier posts, I described two roads not taken–becoming a Protestant minister or a professional historian.[2] Another was not going to graduate school in economics after reading PPE (Philosophy, Politics and Economics) at Oxford. That was primarily because I had had hardly any of the necessary mathematics in college and did not want to embark on a lengthy pursuit of a Ph.D.

After four years of being a Wall Street lawyer, I already have talked about my choosing not to remain at Cravath, Swaine & Moore to compete for one of its partnerships.[3] At the same time I declined an offer to teach at the University of Iowa College of Law. That was because I had enjoyed practicing law, because practice was more lucrative than teaching, and because I did not have some brilliant legal scholarship waiting to be unleashed.

Instead I chose to continue practicing law. But instead of fully exploring various cities, including San Diego, that were on my list of possibilities for such practice, I chose Minneapolis without an exhaustive analysis of the pros and cons of one city versus another. I did so because I already had developed good  working relationships with Minneapolis attorneys at Faegre & Benson on the IBM antitrust cases, because Minneapolis was closer to my wife and my original homes in Nebraska and Iowa and because Minneapolis sounded like an interesting place to live. (This last February after spending four pleasant weeks in Carlsbad, California just north of San Diego and avoiding a very cold and snowy Minneapolis, I wondered: Did I make a mistake in not going to San Diego?)

Other paths not taken were because I was not chosen. I already mentioned not winning a White House Fellowship in the last semester of law school.[4] At the same time my applications for U.S. Supreme Court clerkships with Chief Justice Earl Warren and Justices Potter Stewart and Byron White were rejected. Such clerkships, of course, are pursued by many top law graduates because they are fascinating, challenging and prestigious jobs that open many doors for subsequent legal careers.

After registering for the military draft at age 18, I had college student deferments (Class 2-S) that covered my nine years at Grinnell, Oxford and Chicago. But in my last semester of law school, I received a notice from my draft board to report for an Armed Services physical examination and thus potential military service. As it turned out, my wife was pregnant with our first child, and I thus was entitled to a new deferment (Class 3-A) because of dependant’s hardship. As a result, I never had to serve in the military, and I did not volunteer to do so. I missed the Vietnam War, much to my relief then and now.

While I was at the Faegre & Benson law firm, I was unsuccessful in my efforts to be appointed to vacancies on the Minneapolis School Board and the U.S. District Court in Minnesota as a judge and then later as a magistrate judge.  I also was unsuccessful in seeking the Deanship of the Hamline University School of Law. These jobs all sounded interesting, challenging and rewarding. The last three also would have allowed me to escape the pressures of practicing law.

I also have mentioned my not being offered a teaching position in Ecuador after I retired.[5]

I have no regrets about these roads not taken although I will never know what would have happened had I chosen or been chosen for one of them.  But clearly the road I did take “has made all the difference” in my life. Indeed, the road you take and the many decisions you made at various forks in the road along the way constitute your life.


[1] Robert Frost, The Road Not Taken in Mountain Interval (1915).

[2] Post: Adventures of a History Detective (4/5/11); Post: Minneapolis’ Westminster Presbyterian Church (4/6/11).

[3] Post: Lawyering on Wall Street (4/14/11).

[4] Post: Questioning President Lyndon Johnson (4/17/11).

[5] Post: My First 10 Years of Retirement (4/23/11).