White, Byron R. (1917–) (Update 2)

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WHITE, BYRON R. (1917–) (Update 2)

When Byron R. White retired from the Supreme Court in 1993, the vacancy he created received more attention than his legacy. For the first time since 1967 (with the appointment of thurgood marshall), and only the second time since his own appointment in 1962, a President from the Democratic Party would have the power to nominate a member to the Court. The New York Times editorially dismissed White's career: acknowledging that he was "one of the more remarkable people to serve on the Court," the Times nonetheless found him to be "more a witness than a moving force." White indirectly demurred and was later quoted as saying, "I don't have a doctrinal legacy; I shouldn't"—implying, as he often said, that the role of Justices is to decide particular cases, not to build theoretical structures.

Notwithstanding his own modesty and the judgments of the press, White had a substantial impact on the work of the Court during his lengthy tenure. He played a major role in the development of first amendment doctrine, especially in the areas of press shield laws, branzburg v. hayes (1972); libel, herbert v. lando (1979); child pornography; and the public forum doctrine. He wrote major opinions for the Court in labor, antitrust, and federal jurisdiction. He was one of the leading exponents, and protectors, of a broad reading of congressional power, particularly vis-à-vis claimed states ' rights. From avery v. midland county (1968) to rogers v. lodge (1982), he was one of the Court's resident experts on voting rights law. He also played a central role in the development of doctrinal exceptions to the exclusionary rule.

White will probably be remembered not for his opinions for the Court but for a number of dissenting opinions, in which he took the majority to task—often in fierce terms—for its reasoning and for the practical consequences of its decision. From miranda v. arizona (1966) to roe v. wade (1973) to gertz v. welch (1974) to immigration and naturalization service v. chadha (1983), White never hesitated to express his misgivings over the Court's craft or what he viewed as its audacity. "Judges have an exaggerated view of their role in our polity," he told a friend privately after a decade on the Court, and his sharply worded separate opinions drove home the point.

The credo manifested indelibly in two areas, separation of powers and substantive due process. His first major statement on separation of powers was a separate opinion in buckley v. valeo (1976), in which he was prepared to defer to Congress's judgment that limitations on both raising and spending money in federal elections were necessary notwithstanding concerns, embraced by the majority, that freedom of speech protected spending decisions. He again voted to sustain Congress's device for handling the flood tide of federal litigation in northern pipeline co. v. marathon pipeline co. (1982). In Chadha, he dissented heatedly when the Court invalidated the legislative veto in what he saw as both a wooden and unnecessary reading of the Constitution.

His written record on substantive due process was not fully developed or so widely respected. His dissent in Roe v. Wade was more a declaration of conviction than a sustained theoretical statement, and it was not until his dissent in moore v. city of east cleveland (1977) that he produced a fully expressed critique of the Court's revival of the old doctrine associated with lochner v. new york (1905). His complaint was that the Court was using vague language in the Constitution to impose its own will on a divided polity—an exercise both illegitimate and, he eventually suggested, dangerous to the Court's own political capital. The issue was fundamental to White's view of his role, and so it is ironic that his final major opinion in the area is among his most widely and severely criticized. In bowers v. hardwick (1986), he wrote for a five-Justice majority rejecting a claim that consensual homosexual conduct in private between adults was protected by the due process clause of the fourteenth amendment. To argue that the "claimed right" was "deeply rooted in this nation's history and tradition" or "implicit in the concept of ordered liberty"—the traditional formula used by the Court for upholding such a right—was, White wrote, "at best, facetious." The opinion seemed not to take the claim seriously and was condemned by many as an intellectual "hit-and-run incident." White was not uniformly hostile to claims labeled substantive due process: he joined the majority in griswold v. connecticut (1965), where he acknowledged constitutional protection for the "intimacies of the marriage relationship," and was committed—both before and after Bowers—to supporting the constitutional claims of natural parents to the "companionship … of their children." For White, well-established social norms enjoyed constitutional protection, but novel or controversial claims were beyond the constitutional pale.

Assessment of White's career which focused only on his views or his often difficult opinions tended to obscure the fact that he was one of the hardest working Justices on the Court during the period in which he served. He wrote 1,275 opinions—495 opinions for the Court, 249 concurring opinions, and 572 dissents. He sat during a period in which the Court grew more fractionated and participated in more 5–4 decisions than any other Justice in the Court's history except william j. brennan, jr. his tenure was also one of the longest in the institution's history: only nine others sat longer. in retirement, he continued to sit actively on federal courts of appeals and he also chaired a special commission charged with advising congress on the structure of the federal court of appeals for the ninth circuit.

Dennis J. Hutchinson
(2000)