Byron R. White

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Byron R. White

Byron R. White (born 1917) was a football star, a successful lawyer, a deputy U.S. attorney general, and a U.S. Supreme Court justice. On the high court, he was considered an independent and often served as a swing vote in close decisions, though he most often sided with the conservatives.

Byron R. White was born on June 8, 1917, in Fort Collins, Colorado, and grew up in Wellington, a small farming and trading town in northern Colorado. His father was a branch manager for a local lumber supply company. From their early youth White and his brother worked long hours at hard-labor jobs in sugar beet fields or on section crews for the railroad, their income vital to the family during the bleak years of the Great Depression of the 1930s. Though neither of White's parents had gone through high school, they valued academics and sports, and Byron was accomplished at both. He graduated from high school first in his class and won an academic scholarship to the University of Colorado.

Glory Days

In college White excelled in sports and academics, winning numerous varsity letters in football, basketball, and baseball and being elected Phi Beta Kappa. Nicknamed "Whizzer" for his speed, White as a junior received national attention as Colorado's star running back. Graduating with one of the highest averages in the university's history, White accepted a prestigious Rhodes scholarship to study at Oxford University. Before going to Oxford, he played the 1938-1939 season with the Pittsburgh Steelers, receiving what was at the time the highest salary ever paid to a professional football player. White led the National Football League in rushing, the first rookie ever to lead the league in any department.

After a short time studying at Oxford, White returned to the United States in the fall of 1939 to enter Yale University Law School. He won the Edgar Cullen Award for receiving the highest grades of the freshman class and was appointed to a coveted job on the Law Review. But he declined in order to "play football and make some money instead, " he later recalled. White played the 1940-1941 season with the Detroit Lions, then continued law study during the summer at the University of Colorado. White signed another pro football contract for 1941-1942, but after the Japanese attack on Pearl Harbor he enlisted in the Navy. During World War II White was a naval intelligence officer in the South Pacific, winning two bronze stars for courage in action. He also renewed his acquaintance with another decorated officer, PT-boat commander John F. Kennedy, whom he first had met at Oxford.

To the Supreme Court

After the war White married his college sweetheart, Marion Stearns. He then returned to Yale and finished the final year of law school, graduating in November 1946 magna cum laude. During the 1946-1947 term White held a prestigious law clerkship at the U.S. Supreme Court under Chief Justice Fred Vinson. Again he met Kennedy, who was then a freshman congressman. Although he received offers from leading Washington law firms, White returned to Colorado to begin practice in Denver.

In the 1950s White established a successful legal career, achieving recognition throughout the state. When Kennedy began his campaign for the presidency in 1959, White organized local Colorado-for-Kennedy clubs and successfully gained the bulk of the state's delegate votes for his old friend at the 1960 Democratic convention. White helped Kennedy in his national campaign as well, and the new president named him deputy attorney general. White served capably, especially during the civil rights struggles in the South. In March 1962, to fill the vacancy created by the resignation of Justice Charles E. Whittaker, Kennedy nominated White to the Supreme Court. Six months later Justice Felix Frankfurter also resigned, and the president called on Arthur J. Goldberg to fill that seat.

The two new justices came on the Court at a tumultuous time. Under the leadership of Chief Justice Earl Warren during the 1950s and 1960s, the Supreme Court was leading the nation in an effort to improve the lot of dispossessed minorities and other disadvantaged groups. A majority of the justices embraced an activist role as civil rights confrontations, student anti-war protests, and other struggles shook America. A minority of the Court urged greater restraint. Goldberg aligned himself with the activists, and White tended to side with the proponents of judicial self-restraint.

By the 1970s and 1980s, a new conservative Court majority emerged, with White often a part of it. He did not adhere rigidly to any ideological position and often represented a vital swing vote in close decisions. But on key issues, he tended to side with the conservatives. He was one of two dissenters in the Court's landmark decision approving a woman's right to abortion, Roe v. Wade (1977) and remained a consistent foe of abortion rights in subsequent cases. White opposed broad use of affirmative action, favored closer ties between church and state, and strongly sided with law enforcement officials on law-and-order issues. He rarely ventured to overturn laws passed by Congress. In his most personal opinion, in Bowers v. Hardwick (1986), he argued that states are free to ban sodomy and oral sex because there is a long tradition of intolerance against homosexuality.

White's pragmatic approach to law did not sit well with critics. "White was uninterested in articulating a constitutional vision, " author Jeffrey Rosen wrote in The New Republic of April 12, 1993. "Despite his ability as a first-rate legal technician, White never transcended his initial incarnation as the jock justice… . White's jurisprudence … was essentially reactive and obsessed with scoring points…. Despite his reputation for independent voting, White's lack of an independent vision reduced him to defining himself in relation to those with more coherent views."

In 1993 White retired after 31 years on the Supreme Court. His career as athlete, attorney, and justice was unique in American history.

Further Reading

White's entry in The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions, Leon Friedman and Fred L. Israel, Volume IV (1969), provides an excellent overview from his birth to the end of the Warren Court era. Volume V of the same series, edited by Leon Friedman, examines White's contribution to the Court from 1969 to 1978. For treatment of his place on the Warren Court see Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court— A Judicial Biography (1983). White's role on the Burger Court is discussed in Vincent Blasi, The Burger Court, The Counter Revolution That Wasn't (1983). A critical assessment of his tenure as justice is Jeffrey Rosen, The New Republic (April 12, 1993). □

White, Byron Raymond

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Byron Raymond White sat on the U.S. Supreme Court as an associate justice from 1962 to 1993. White had an eclectic career. He was a college and pro football star during the 1930s and 1940s and an assistant attorney general under robert f. kennedy from 1960 until 1962, the year his friend President john f. kennedy appointed him to the Supreme Court. As a justice, White charted a pragmatic and low-key course on the bench: he enunciated no single judicial philosophy, although judicial restraint sometimes appeared as a feature of his reasoning. For part of his career, he was seen as a moderate. Toward the end, however, he voted conservatively on social issues such as abortion, affirmative action, and gay and lesbian rights.

Born on June 8, 1917, in Fort Collins, Colorado, White was the son of working class parents. As a youth, he picked beets in the poor community, but he excelled in athletics and scholastics. He attended the University of Colorado on an academic scholarship and, in 1937, became the premier running back in college football. So accomplished was "Whizzer" White on the gridiron that when he threatened not to play in the Cotton Bowl—because it would interfere with his studying—the state's governor intervened in order to convince him to play. He graduated in 1938 as class valedictorian.

White's journey to the bench was not direct. In 1939, he accepted a Rhodes Scholarship to study at Oxford University in England, where he became a lifelong friend of John F. Kennedy. He subsequently played in the National Football League and led the league in rushing while also studying law at Yale University, where he graduated with high honors in 1946. During world war ii White joined the U.S. Navy and served in the Pacific. After the war, he clerked for Chief Justice fred m. vinson from 1946 to 1947.

For the next 13 years, White practiced law in Denver, Colorado. His organizational support for the presidential candidacy of John F. Kennedy led to his being appointed second in charge of the justice department in 1960. After two years of selecting judges and helping steer the department's support of the civil rights movement, White was nominated to the Supreme Court to fill the vacancy created by the resignation of Justice charles whittaker.

White's tenure on the Court was marked by judicial pragmatism and unpredictability. Defying expectations that he would be a centrist,

White swayed between liberal and conservative positions. He consistently supported the constitutionality of civil rights reforms during the mid-1960s in cases dealing with voting rights. Thirty years later, he continued to take a firm stance on the issue of school desegregation: in 1992 he wrote the majority opinion in U.S. v. Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992), which ordered Mississippi to take additional steps to desegregate its state colleges.

White's tendency to vote conservatively also became apparent early in his tenure on the Court. In 1966, he dissented from the Court's decision in miranda v. arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), which established the so-called Miranda Rule requiring police officers to read arrested persons their constitutional rights. Believing that it would only weaken the ability of the police to do their job, White called the decision "a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials."

This conservatism was grounded in pragmatism. In 1972, White was one of two justices dissenting from the majority decision that established a woman's right to abortion (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). His four-page dissent avoided the moral issues involved and attacked the majority's reading of the Constitution: they had exceeded the Court's power. He could find no constitutional basis for "valu[ing] the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Similarly, his 1986 majority opinion in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) dispassionately held that a Georgia statute criminalizing sodomy—oral and anal sex—did not violate the constitutional rights of homosexuals. He simply found no "fundamental right to engage in homosexual sodomy" and refused to find a new right in the constitution's due process clause. Doing so, he wrote, would make the Court vulnerable to criticisms of judicial activism.

In the 1980s and 1990s, White's liberal tendencies were all but exhausted. He frequently sided with the conservative voting bloc on the Court. In case after case, he joined the conservative majority in opposing abortion rights, curtailing affirmative action programs, restricting federal civil rights laws, and allowing the use of illegally-acquired police evidence in court. As was his wont, he uniquely refused to read his opinions from the bench and, instead, merely indicated whether the Court upheld or reversed the decisions of lower courts.

"The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."
—Byron R. White

After retiring from the Supreme Court in 1993, White continued working in the legal arena. He occasionally served as an appellate court judge and he was chairman of the Commission on Structural Alternatives for the Federal Court of Appeals from 1997 to 1999. White died on April 15, 2002, in Denver, Colorado, at the age of 84.

further readings

Hutchinson, Dennis J. 1998. The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. New York: Free Press.

Various law review special editions, including: Harvard Law Review 116 (Nov. 2002); Stanford Law Review 55 (Oct. 2002); University of Colorado Law Review 74 (Fall 2003); and Yale Law Journal 112 (March 2003).