White, Byron R. (1917–) (Update 1)

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WHITE, BYRON R. (1917–) (Update 1)

When he was appointed to the Supreme Court in 1962, Byron White, at the age of forty-four, was a symbol of the vigor, youth, and intellectual power of the john f. kennedy administration. From a poor rural background, he had ranked first in the class of 1938 at the University of Colorado, becoming a football All American and winning a Rhodes Scholarship. By the time he graduated from Yale Law School in 1946, he had briefly studied at Oxford, played two seasons of professional football, served as a naval intelligence officer in the Pacific, and twice encountered John Kennedy (once at Oxford, once in the Pacific). After clerking for Chief Justice fred m. vinson, White joined a law practice in Denver where he remained for fourteen years. When Kennedy won the Democratic nomination for President in 1960, White chaired the nationwide volunteer group Citizens for Kennedy. His service as deputy attorney general under robert kennedy included screening candidates for judicial appointments and supervising federal marshals protecting workers in the civil rights movement in the South. He had been at the job only fourteen months when the President nominated him to fill the vacancy created by the resignation of charles whittaker.

During his nearly thirty years on the Court, White has generally reflected the commitments of the President who appointed him: to equal opportunity, to effective law enforcement, and to enablement of government as it responds to new challenges—with less concern for individual rights, group rights, and states ' rights. To the distress of those who would prefer greater elaboration of a philosophical vision, he has approached the judicial task in a lawyerly and pragmatic fashion, although sometimes in excessively cryptic opinions. His independence and analytic bent of mind have often isolated him from more ideological colleagues. As he has served with twenty other Justices during times of great ferment on the Court, his role has changed considerably. He was in the majority in fewer than half of the 5–4 decisions during the 1960s, in more than sixty percent of the 5–4 decisions during the 1970s, and in nearly three-fourths of the 5–4 decisions during the 1980s—more frequently than any other Justice during that decade. Although profound changes in American society (often shaped by the Court itself) have significantly affected the issues before him and, to a lesser extent, his resolution of particular issues, a review of his work on the Court reveals significant consistency in perspective, method, and conviction.

White knows that judges make law. His time at Yale Law School was the heyday of that school's celebration of legal realism. As he explained in dissent in miranda v. arizona (1966), "[T]he Court has not discovered or found the law in making today's decision; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution.… [I]t is wholly legitimate … to inquire into the advisability of its end product in terms of the long-range interest of the country."

White also understands that the triumph of the administrative state, marked especially by an affirmative and vigorous federal government, has forever altered the shape of American political institutions, including the Court. For White, however, neither legal realism nor expanding concepts of national political authority and responsibility justify the exercise of "raw judicial power." A recurring theme of his opinions is that the judiciary undermines its own legitimacy when it seeks to achieve political objectives not sanctioned by the other branches of government or when it promotes social transformation resisted by the democratic institutions of society.

White's confidence in the good faith and capabilities of democratic institutions—Congress especially, but also the executive, state legislatures, and juries—exceeds that of other justices of the "left" or of the "right." For White, the powers of government are limited neither by abstract conceptions of individual autonomy, nor by any extrademocratic mandate for perfection in human affairs. Rather, government power is limited by the very forces that legitimate it: the people acting through fair and free elections and a Constitution that both authorizes and specifically checks government actors.

In the spirit of the new deal and of President Kennedy, White gives great weight to securing and preserving federal authority, especially Congress's authority. Where Congress has legislated (or federal agencies have acted pursuant to delegated power), he is disposed to find federal preemption of state law. Where Congress has not legislated, he gives wide berth to the dormant commerce clause. Where states seek to regulate federal entities, he is disposed to place limits on state power. He does not view the tenth amendment as a limitation on Congress's regulatory power; he would permit Congress to abrogate state sovereign immunity under the eleventh amendment; and he recognizes significant legislative power to implement the fourteenth amendment. Where Congress has delegated interpretative authority to administrative agencies, he is strongly disposed to defer to agency interpretations of statutes. In many ways, he has been the preeminent nationalist on the Court in the modern era. For instance, White was the only dissenter to the Court's 1978 decision upholding the multistate tax compact, which had not been approved by Congress, because of its " potential encroachment on federal supremacy."

White's understanding of the separation of powers in our national government, as set forth in a series of powerful dissents, is similarly rooted in his recognition that Congress needs latitude to solve economic problems and to reallocate governance authorities in response to the growing demands on national institutions in the post-New Deal era. Thus, he urged in buckley v. valeo (1976) that "Congress was entitled to determine that personal wealth ought to play a less important role in political campaigns than it has in the past." He lamented in northern pipeline co. v. marathon pipe line co. (1982) that "at this point in the history of constitutional law" the Court should not have "looked[ed] only to the constitutional text" to determine Congress's power "to create adjudicatory institutions designed to carry out federal policy." He explained in immigration naturalization service v. chadha (1983) that the legislative veto "is an indispensable political invention that … assures the accountability of independent regulatory agencies and preserves Congress' control on lawmaking." And the budget-balancing legislation of bowsher v. synar (1986) was "one of the most novel and far reaching legislative responses to a national crisis since the New Deal."

White conceives of a more limited role for the federal courts, not to supplement or second-guess Congress's policies, but to ensure their implementation by state and federal actors. His concurrence in Chapman v. Houston Welfare Rights Organization (1979)—urging that in the civil rights legislation of the reconstruction Congress had provided a remedy for denial not only of constitutional rights but also of rights created by federal statutes—was subsequently adopted by a majority of the Court. White would also more narrowly construe executive immunity than would a majority of his colleagues. He is less willing than many others on the Court, however, to infer a private cause of action to enforce federal rights where Congress has lodged responsibility for enforcement with a federal agency or has provided for administrative remedies. Nor is he uniformly activist on issues of political question, standing, and other prudential limitations on judicial review. Although he has sometimes resisted efforts to restrict habeas corpus jurisdiction, he has joined in limiting the bases on which habeas review may upset a criminal conviction.

To achieve consistency in constitutional interpretation, White has taken an expansive view of the Supreme Court's jurisdiction over state court decisions. Moreover, often dissenting from denial of certiorari, he has regularly urged the Court to use its discretionary jurisdiction to review apparent inconsistencies in the lower courts. His longstanding extrajudicial campaign for creation of a national court of appeals or similar structure to ensure uniformity in federal law may finally have run its course in view of the reduction in the Supreme Court's workload in recent terms.

White's clear sense of the primacy of democratic institutions is reflected in his commitment to the protection of rights to participate in the electoral process. From avery v. midland county (1968) to Board of Estimate of the City of New York v. Morris (1989), he has led the Court in expansively interpreting the principle of one person, one vote to subject varieties of political apportionment and gerrymandering to judicial review, even as he has taken a relatively permissive and pragmatic approach to apportionment disparities. His dissent in mobile v. bolden (1980) effectively became the majority position two terms later in rogers v. lodge (1982), which eased the burden of minority challenges to electoral districting schemes that perpetuate purposeful racial discrimination. As indicated in Buckley and subsequent cases, White would go further than other Justices in permitting Congress to regulate the electoral processes to root out potential corruption and inequality, even at the cost of some inhibition of free speech.

More generally, his first amendment jurisprudence permits significant intrusions on the media, whether in the form of the fairness doctrine as in red lion broadcasting co. v. fcc (1969); search warrants, asin zurcher v. stanford daily (1978); subpoenas, asin branzburg v. hayes (1972); or libel law, asin herbert v. lando (1979) and his dissent in gertz v. robert welch, inc. (1974). White is likewise deferential toward regulation and prosecution of obscenity, child pornography, and subversive advocacy. He has been a leading opponent of a strict, separatist conception of the establishment of religion and would, for instance, permit state aid for secular activities in parochial schools.

Although White gives broad scope to legislative power, he has usually subjected the legislative product to close scrutiny for invidious purpose or for insufficient relationship to a legitimate purpose. For a time, White's purpose analysis produced a more activist Fourteenth Amendment jurisprudence than the majority of the Court was willing to embrace; for example, he argued in dissent in palmer v. thompson (1971) that a Mississippi town should not be permitted to close its swimming pool where its purpose was to prevent implementation of a desegregation order. White's scrutiny of purpose is decidedly nonactivist, however, in the face of minority challenges to government programs that have disparate racial impact without discriminatory intent. In the seminal case of washington v. davis (1976), he held for a 7–2 majority that disparate impact alone does not constitute the kind of racial discrimination that presumptively violates the constitutional principle of equal protection of the laws. White has not adopted the view that the Constitution prohibits all "reverse discrimination" to counteract diffuse societal discrimination. His joint opinion in regents of university of california v. bakke (1978), permitting government to take race into account in university admissions, reflects his oft-demonstrated concern for equal educational opportunity. His votes, in fullilove v. klutznick (1980) and metro broadcasting, inc. v. federal communications commission (1990), to uphold federal minority "set-aside" and race-preference requirements underscore his deference to Congress even as he voted, in richmond (city of) v. j. a. croson co. (1989), to strike down a local government's "set-aside" scheme.

For a decade after he joined the majority opinion in griggs v. duke power co. (1971), White appeared content with permitting disparate impact alone to be sufficient for broad race-conscious remedies in employment discrimination cases brought under Title VII of the civil rights act of 1964. In 1979, he even joined in endorsing a private employer's use of racial quotas intended to eliminate the effects of societal discrimination. White began to express significant dissatisfaction with aspects of the prevailing Title VII jurisprudence in a series of opinions, mostly dissenting, in the mid-1980s. By the end of the decade, amid indications that the disparate-impact test invited use of racial quotas, White commanded a majority in Wards Cove Packing Co. v. Antonio (1989) to shift the burden of proof in disparate-impact cases.

In school desegregation cases, however, White has been as ready as any member of the Court to find evidence of past purposeful discrimination and to approve broad remedies. His majority opinion in columbus board of education v. penick (1979) permitted inference of purposeful discrimination from evidence of long-past misconduct and a continued discriminatory effect, and placed the burden on the defendant school system to prove that it had not caused any current racial secregation in its schools. In addition, he would hold the state, not the defendant school district, ultimately responsible for removing the effects of purposeful discrimination; in this view, neither the happenstance of school-district boundaries nor state laws impeding school funding may stand in the way of remedial decrees. Thus he was in a minority in milliken v. bradley (1974) in arguing and a remedy of interdistrict school busing, and he wrote the 5–4 decision in Jenkins v. Missouri (1990) upholding the power of the federal district court to order a defendant school board to impose tax increases in violation of fiscally restrictive state law.

One may infer several reasons for White's different stances in school desegregation cases and employment discrimination cases. Even outside the race-discrimination context, White has adopted an ethic of group equality in education, as demonstrated in his dissent in san antonio independent school district v. rodriguez (1973), where he would have struck down school-financing schemes that leave the poorest school districts with the most impoverished schools. Moreover, the proof of purposeful racial discrimination by school districts is often palpable, but it is difficult to trace disparate racial impact in the job market to purposeful discrimination by a defendant employer. In addition, although busing does not deny schooling to any child, White has expressed particular unhappiness with quota systems that take jobs away from nondiscriminating white workers. Finally, judicial imposition of systems of racial preference in employment would cause upheavals in collective bargaining, seniority systems, and other underpinnings of industrial society.

White's belief in the legitimacy of the law in ordering our social life, along with his confidence in the institutions of government, have made him reluctant to impose "decriminalization," either directly (by limiting legislative power to punish) or indirectly (by insisting on perfection from police, prosecutors, and others charged with achieving criminal justice). Even as he joined the holding in Furman v. Georgia (1972), striking down a scheme of capital punishment that provided no guidance for the sentencing authority, White noted the good faith of Georgia in granting discretion to sentencing juries out of a "desire to mitigate the harshness" of capital punishment laws. Subsequently, he has voted to uphold carefully structured death penalty laws, rejecting the arguments that juries "disobey or nullify their instructions" and that others who retain discretion, such as prosecutors, inevitably wield it arbitrarily. Invoking the Court's ill-famed journey earlier in this century into the realm of substantive due process, he has refused to make the judgment that the death penalty cannot comport with the Constitution. White has, however, recognized substantive limitations on the types of crimes for which this penalty may be imposed; he wrote the Court's opinion in coker v. georgia (1977), holding the death penalty disproportionate for the rape of an adult, and the Court's opinion in enmund v. florida (1982), holding capital punishment improper where a murder conviction was based solely on a theory of felony murder.

The criteria of "reasonableness" and "good faith," at the core of much of White's jurisprudence, are especially prominent in his approach to the fourth amendment—which has largely become the law of the land. He has been the leading proponent of clear and simple rules governing police search and seizure. He understands the Constitution's requirement that searches and seizures be "reasonable" to have broad applicability, if shallow in depth; he wrote the opinion in camara v. municipal court (1967), which spawned a new jurisprudence upholding an array of regulatory searches on less than probable cause, but he also wrote tennessee v. garner (1985), which prohibited use of deadly force against fleeing felons, and he has recognized the Fourth Amendment's applicability to subpoenas issued by grand juries. His oft-stated antipathy to the exclusionary rule as a remedy for Fourth Amendment violations finally led to adoption of the good faith exception to this rule in United States v. Leon (1984). White has likewise taken a functional and pragmatic approach to the Sixth Amendment's right to trial by jury. He has resisted efforts to limit criminal investigations and forfeitures through broad application of the right to counsel; he has dissented from interpretations of the Fifth Amendment right against self-incrimination that depart from historical practice and impede reliable administration of justice; and he has been at the forefront of the Court in permitting great leeway in plea bargaining, asin Brady v. United States (1970).

White's opinions on criminal procedure reveal not only his perspective on issues of criminal justice but also his unusual commitment to the rule of stare decisis in constitutional adjudication, which has sometimes led to the perception that he is "unpredictable." Like many Justices, White is ready to overrule previous decisions that prove unworkable or ill-advised. For instance, he joined batson v. kentucky (1986), which, overruling his own swain v. alabama (1965), subjected preemptory jury challenges to judicial review for racial discrimination; Batson acknowledged that Swain 's confidence in state prosecutors had not been vindicated. Yet White, more than other Justices and regardless of ideological inclination, has on most issues sought to adhere to constitutional precedent not yet overruled. Thus, although he dissented forcefully in Miranda, he has clearly accepted the major contours of that decision. Indeed, he wrote edwards v. arizona (1981), which went beyond the core of Miranda in prohibiting all questioning once the suspect in custody has requested an attorney. Similarly, despite his long, carefully composed dissent in payton v. new york (1980), which required an arrest warrant to arrest persons in their homes, White ten years later wrote the majority opinion applying Payton to the arrest of someone hiding out overnight in a friend's home. Even where he would vote to overrule a precedent, White has sometimes exasperated observers by refusing to cast the fifth vote for simply narrowing the reach of the precedent, insisting he is bound until it is expressly overruled.

The most controversial decision by White upholding government power to invoke the criminal process is bowers v. hardwick (1986), which refused to strike down a Georgia law forbidding consensual sodomy between men. White conceived the issue much as he had the issue in the death penalty cases: whether the Supreme Court should bypass political institutions to establish a new social order. White had long objected to the Court's discovery of new constitutional rights deriving from the concept of "privacy." His concurrence in griswold v. connecticut (1965) declined to find a general right of privacy, emphasizing instead the lack of a rational relationship between the statute's ban on distributing birth control information to married persons and the purported purpose of the statute. roe v. wade (1973), the decision establishing a broad right to abortion throughout pregnancy, evoked a response reminiscent of his Miranda dissent: "The Court simply fashions and announces a new constitutional right … with scarcely any reason or authority." In dissents in subsequent privacy rights cases during the 1970s and early 1980s, including moore v. city of east cleveland (1977), which struck down a zoning ordinance that narrowly defined "single family," White even more explicitly compared the Court's "new" substantive due process with the efforts of the Court in lochner v. new york (1905) to impose its will on a divided polity. By 1986, in thornburgh v. american college of obstetricians and gynecologists, he advocated overruling Roe, urging that the right it recognized was neither "implicit in the concept of ordered liberty," nor "deeply rooted in the nation's history and traditions." For White, Bowers was a replay of Thornburgh, with the important difference that he was writing the majority opinion. As White must have anticipated, once the majority had adopted his approach to enunciation of a fundamental right, it was only a matter of time before Roe itself would begin to collapse, as indeed it did in webster v. reproductive health services (1989).

Yet White himself had recognized certain fundamental liberty interests that may be subsumed under the label substantive due process—including, in Griswold, "the right to be free of regulation of the intimacies of the marriage relationship" and, in a long series of cases (continuing even after Bowers) dealing with illegitimacy, the rights of natural parents "in the companionship … of their children." White's purpose-based jurisprudence might have considered proscriptions of sodomy as different from anti-abortion laws. In the latter, the organized community may have the purpose of protecting human life, whereas in the former, its motiviation may simply be antipathy towards homosexuals—a purpose that could be recognized (but that White in 1986 declined to recognize) as invidious. Here as elsewhere, White's jurisprudence seldom puts the Court ahead of the country. For him, the Court's primary role in constitutional lawmaking is not to pioneer or even to lead, but rather to secure for the whole nation the democratic consensus that has already been reached.

Kate Smith


Hutton, Mary Christine 1986 The Unique Perspective of Justice White: Separation of Powers, Standing and Section 1983 Cases. Administrative Law Review 40:377–414.

Liebman, Lance 1987 Justice White and Affirmative Action. University of Colorado Law Review 58:471–496.

Nelson, William E. 1987 Deference and the Limits to Deference in the Constitutional Jurisprudence of Justice Byron R. White. University of Colorado Law Review 58:347–364.

O'D onnell, Pierce 1987 Common Sense and the Constitution: Justice White and the Egalitarian Ideal. University of Colorado Law Review 58:433–470.

Student Note 1987 The Intercircuit Tribunal and Perceived Conflicts: An Analysis of Justice White's Dissents from Denial of Certiorari During the 1985 Term. New York University Law Review 62:610–650.

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White, Byron R. (1917–) (Update 1)

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