Byron White
Encyclopedia
Byron Raymond "Whizzer" White (June 8, 1917 – April 15, 2002) won fame both as a football
halfback
and as an associate justice of the Supreme Court of the United States
. Appointed to the court by President John F. Kennedy
in 1962, he served until his retirement in 1993. He was married to Marion Lloyd Stearns in 1946 and the father of two children, Charles (Barney) Byron White and Nancy Pitkin White
.
White was born in Fort Collins, Colorado
. He was raised in the nearby town of Wellington, Colorado
, where he obtained his high school diploma in 1930. He made a point of returning to Wellington on an annual basis for his high school reunions up until 1999 when his physical health worsened significantly. He died in Denver
at the age of 84 from complications of pneumonia
. He was the first and only Supreme Court Justice from the state of Colorado.
on a scholarship. He joined the Phi Gamma Delta
fraternity and served as student body president his senior year. Graduating in 1938, he won a Rhodes Scholarship
to the University of Oxford and, after having deferred it for a year to play football, he went on to attend Hertford College, Oxford
.
halfback
for the Colorado Buffaloes
of the University of Colorado at Boulder, where he acquired the nickname "Whizzer" from a newspaper columnist. The nickname would follow him throughout his later legal and Supreme Court career, to White's chagrin. He also played basketball and baseball. After graduation he signed with the NFL
's Pittsburgh Pirates
(now Steelers), playing there during the 1938 season
. He led the league in rushing in his rookie season and became the game's highest-paid player.
After Oxford, White played for the Detroit Lions
from 1940 to 1941. In three NFL seasons, he played in 33 games. He led the league in rushing yards
in 1938 and 1940, and he was one of the first "big money" NFL players, making $15,000 a year.
His career was cut short when he entered the United States Navy
during World War II; after the war, he elected to attend law school
rather than return to football. He was elected to the College Football Hall of Fame
in 1954.
stationed in the Pacific Theatre
. He had originally wanted to join the Marines but was kept out due to being colorblind. He wrote the intelligence report on the sinking of future President John F. Kennedy
's PT-109
. White was awarded two Bronze Star
medals.
After World War II, he attended Yale Law School
, graduating magna cum laude in 1946. During his years at Yale Law, he served as Chairman of the Conservative Party of the Yale Political Union
, preceded by Homer Daniels Babbidge and succeeded by Johnston Redmond Livingston.
After serving as a law clerk to Chief Justice Fred Vinson
, White returned to Denver.
White practiced in Denver for roughly fifteen years with the law firm now known as Davis Graham & Stubbs
. This was a time in which the Denver business community flourished, and White rendered legal service to that flourishing community. White was for the most part a transactional attorney. He drafted contracts and advised insolvent companies, and he argued the occasional case in court.
During the United States presidential election, 1960
, White put his football celebrity to use as chair of John F. Kennedy's campaign in Colorado. White had first met the candidate when White was a Rhodes scholar and Kennedy's father, Joseph Kennedy, was Ambassador to the Court of St. James. During the Kennedy administration, White served as United States Deputy Attorney General
, the number two man in the Justice Department
, under Robert F. Kennedy
. He took the lead in protecting the Freedom Ride
rs in 1961, negotiating with Alabama
Governor John Malcolm Patterson
.
Acquiring renown within the Kennedy Administration for his humble manner and sharp mind, he was appointed by Kennedy in 1962 to succeed Justice Charles Evans Whittaker
, who retired for disability. Kennedy said at the time: "He has excelled at everything. And I know that he will excel on the highest court in the land." The 44-year-old White was approved by a voice vote. Upon the request of Vice President-Elect Al Gore
, Justice White administered the oath of office on January 20, 1993 to the 45th U.S. Vice President. It was the only time White administered an oath of office to a Vice President.
White's Supreme Court tenure was the fourth-longest of the 20th century.
During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court, and his votes and opinions on the bench reflect an ideology that has been notoriously difficult for popular journalists and legal scholars alike to pin down. He was seen as a disappointment by some Kennedy supporters who wished he would have joined the more liberal
wing of the court in its opinions on Miranda v. Arizona and Roe v. Wade.
White often took a narrow, fact-specific view of cases before the Court and generally refused to make broad pronouncements on constitutional doctrine or adhere to a specific judicial philosophy. He preferred to take what he viewed as a practical approach to the law to one based in any legal philosophy. In the tradition of the New Deal
, White frequently supported a broad view and expansion of governmental powers. He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 case of Miranda v. Arizona
. In his dissent in that case he noted that aggressive police practices enhance the individual rights of law-abiding citizens. His jurisprudence
has sometimes been praised for adhering to the doctrine of judicial restraint
.
", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of the Fifth Amendment
and Fourteenth Amendment
, White dissented in the controversial 1973 case of Roe v. Wade
. But White voted to strike down a state ban on contraceptives in the 1965 case of Griswold v. Connecticut
, although he did not join the majority opinion, which famously asserted a "right of privacy" on the basis of the "penumbras" of the Bill of Rights
. White and Justice William Rehnquist
were the only dissenters from the Court's decision in Roe, though White's dissent used stronger language, suggesting that Roe was "an exercise in raw judicial power" and criticizing the decision for "interposing a constitutional barrier to state efforts to protect human life." White, who usually adhered firmly to the doctrine of stare decisis
, remained a critic of Roe throughout his term on the bench.
White explained his general views on the validity of substantive due process at length in his dissent in Moore v. City of East Cleveland:
White parted company with Rehnquist in strongly supporting the Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with Justice William J. Brennan in 1973's Frontiero v. Richardson
that laws discriminating on the basis of sex should be subject to strict scrutiny. However, only three justices joined Brennan's plurality opinion in Frontiero; in later cases gender discrimination cases would be subjected to intermediate scrutiny (see Craig v. Boren
).
White wrote the majority opinion in Bowers v. Hardwick
(1986), which upheld Georgia
's anti-sodomy law against a substantive due process attack.
White's opinion in Bowers shows the consistency of his commitment to judicial restraint, and his opposition to usurpation of power
by the Judiciary. His argument in the case typified White's fact-specific, deferential style of deciding cases: White's opinion treated the issue in that case as presenting only the question of whether homosexuals had a fundamental right to engage in sexual activity, even though the statute in Bowers potentially applied to heterosexual sodomy (see Bowers, 478 U.S. 186, 188, n. 1). A year after White's death, Bowers was overruled in Lawrence v. Texas
(2003).
(1972) to strike down several state capital punishment statutes, voicing concern over the arbitrary nature in which the death penalty was administered. The Furman decision ended capital punishment in the U.S. until 1977, when Gary Gilmore
, who decided not to appeal his death sentence, was executed by firing squad. White, however, was not against the death penalty in all forms: he voted to uphold the death penalty statutes at issue in Gregg v. Georgia
(1976), even the mandatory death penalty schemes struck down by the Court.
White accepted the position that the Eighth Amendment to the United States Constitution
required that all punishments be "proportional" to the crime; thus, he wrote the opinion in Coker v. Georgia
(1977), which invalidated the death penalty for rape of a 16-year-old married girl. However, his first reported Supreme Court decision was a dissent in Robinson v. California
(1962), in which he criticized the Court for extending the reach of the Eighth Amendment. In Robinson the Court for the first time expanded the constitutional prohibition of “cruel and unusual punishments” from examining the nature of the punishment imposed and whether it was an uncommon punishment − as, for example, in the cases of flogging, branding, banishment, or electrocution − to deciding whether any punishment at all was appropriate for the defendant’s conduct. White said: “If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress.” Consistent with his view in Robinson, White thought that imposing the death penalty on minors
was constitutional, and he was one of the three dissenters in Thompson v. Oklahoma
(1988), a decision that declared that the death penalty as applied to offenders below 16 years of age was unconstitutional as a cruel and unusual punishment.
, White dissented in Roe v. Wade
(the dissenting decision was in the companion case, Doe v. Bolton
), castigating the majority for holding that the U.S. Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."
attempts to fully desegregate
public schools, even through the controversial line of forced busing cases. He voted to uphold affirmative action
remedies to racial inequality in an education setting in the famous Regents of the University of California v. Bakke
case of 1978. Though White voted to uphold federal affirmative action programs in cases such as Metro Broadcasting, Inc. v. FCC
, 497 U.S. 547 (1990) (later overruled by Adarand Constructors v. Peña, 515 U.S. 200 (1995)), White voted to strike down an affirmative action plan regarding state contracts in Richmond v. J.A. Croson Co.
(1989).
White dissented in Runyon v. McCrary
(1976), which held that federal law prohibited private school
s from discriminating on the basis of race. White argued that the legislative history of Title 42 U.S.C. § 1981 (popularly known as the "Ku Klux Klan
Act") indicated that the Act was not designed to prohibit private racial discrimination, but only state-sponsored racial discrimination (as had been held in the Civil Rights Cases
of 1883). White was concerned about the potential far-reaching impact of holding private racial discrimination illegal, which if taken to its logical conclusion might ban many varied forms of voluntary self-segregation, including social and advocacy groups that limited their membership to blacks: "Whether such conduct should be condoned or not, whites and blacks will undoubtedly choose to form a variety of associational relationships pursuant to contracts which exclude members of the other race. Social clubs, black and white, and associations designed to further the interests of blacks or whites are but two examples". Runyon was essentially overruled by 1989's Patterson v. McLean Credit Union, which itself was superseded by the Civil Rights Act of 1991
.
, "I wasn't exactly in his circle." On the Burger Court, the Chief Justice was fond of assigning important criminal procedure and individual rights opinions to White, because of his frequently conservative views on these questions.
White frequently urged that the Supreme Court should consider cases when federal appeals courts were in conflict on issues of federal law, believing that a primary role of the Supreme Court was to resolve such conflicts. Thus, White voted to grant certiorari
more often than many of his colleagues, and he wrote numerous opinions dissenting from denials of certiorari. After White (along with fellow Justice Harry Blackmun
, who also took a liberal line in voting to grant certiorari) retired, the number of cases heard each session of the Court declined steeply.
White disliked the politics of Supreme Court appointments. During his interviews for clerks, he mostly wished to discuss football, not legal philosophies; at one point, he turned down future Justice Samuel Alito
for a clerkship. He retired in 1993, during Bill Clinton
's presidency, saying that "someone else should be permitted to have a like experience." Clinton appointed Justice Ruth Bader Ginsburg
, a judge from the Court of Appeals for the D.C. Circuit and a former Columbia University
law professor, to succeed him.
White died on April 15, 2002 at the age of 84. He was the last living Warren Court
Justice, and died the day before the fortieth anniversary of his swearing in as a Justice. From his death until the retirement of Sandra Day O'Connor
, there were no living former Justices.
His remains are interred at All Souls Walk at the St. John's Cathedral in Denver.
Then-Chief Justice Rehnquist said White "came as close as anyone I have known to meriting Matthew Arnold
's description of Sophocles
: 'He saw life steadily and he saw it whole.' All of us who served with him will miss him."
, who was involved in Runyon v. McCrary, grew up to be a professional football player and won the Byron "Whizzer" White award in 2001.
The federal courthouse in Denver that houses the Tenth Circuit
is named after White.
White was posthumously awarded the Presidential Medal of Freedom
in 2003 by President George W. Bush
.
White was inducted into the Rocky Mountain Athletic Conference
Hall of Fame on July 14, 2007, in addition to being a member of the College Football Hall of Fame.
One of White's former law clerks, Dennis J. Hutchinson
, wrote an unofficial biography of him called The Man Who Once was Whizzer White.
American football
American football is a sport played between two teams of eleven with the objective of scoring points by advancing the ball into the opposing team's end zone. Known in the United States simply as football, it may also be referred to informally as gridiron football. The ball can be advanced by...
halfback
Halfback (American football)
A halfback, sometimes referred to as a tailback, is an offensive position in American football, which lines up in the backfield and generally is responsible for carrying the ball on run plays. Historically, from the 1870s through the 1950s, the halfback position was both an offensive and defensive...
and as an associate justice of the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. Appointed to the court by President John F. Kennedy
John F. Kennedy
John Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....
in 1962, he served until his retirement in 1993. He was married to Marion Lloyd Stearns in 1946 and the father of two children, Charles (Barney) Byron White and Nancy Pitkin White
Nancy White (field hockey)
Nancy Pitkin White Lippe is a former field hockey player from the United States. A two-time first-team All-American from Stanford University, she was a member of the U.S. Olympic team in 1980, but due to the 1980 Summer Olympics boycott, did not compete in the Olympics...
.
White was born in Fort Collins, Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
. He was raised in the nearby town of Wellington, Colorado
Wellington, Colorado
Wellington is a Statutory Town in Larimer County, Colorado, United States. The population was 6,289 at the 2010 census.-Geography:Wellington is located at ....
, where he obtained his high school diploma in 1930. He made a point of returning to Wellington on an annual basis for his high school reunions up until 1999 when his physical health worsened significantly. He died in Denver
Denver, Colorado
The City and County of Denver is the capital and the most populous city of the U.S. state of Colorado. Denver is a consolidated city-county, located in the South Platte River Valley on the western edge of the High Plains just east of the Front Range of the Rocky Mountains...
at the age of 84 from complications of pneumonia
Pneumonia
Pneumonia is an inflammatory condition of the lung—especially affecting the microscopic air sacs —associated with fever, chest symptoms, and a lack of air space on a chest X-ray. Pneumonia is typically caused by an infection but there are a number of other causes...
. He was the first and only Supreme Court Justice from the state of Colorado.
Education
After graduating at the top of his Wellington high school class, White attended the University of Colorado at BoulderUniversity of Colorado at Boulder
The University of Colorado Boulder is a public research university located in Boulder, Colorado...
on a scholarship. He joined the Phi Gamma Delta
Phi Gamma Delta
The international fraternity of Phi Gamma Delta is a collegiate social fraternity with 120 chapters and 18 colonies across the United States and Canada. It was founded at Jefferson College, Pennsylvania, in 1848, and its headquarters are located in Lexington, Kentucky, USA...
fraternity and served as student body president his senior year. Graduating in 1938, he won a Rhodes Scholarship
Rhodes Scholarship
The Rhodes Scholarship, named after Cecil Rhodes, is an international postgraduate award for study at the University of Oxford. It was the first large-scale programme of international scholarships, and is widely considered the "world's most prestigious scholarship" by many public sources such as...
to the University of Oxford and, after having deferred it for a year to play football, he went on to attend Hertford College, Oxford
Hertford College, Oxford
Hertford College is one of the constituent colleges of the University of Oxford in England. It is located in Catte Street, directly opposite the main entrance of the original Bodleian Library. As of 2006, the college had a financial endowment of £52m. There are 612 students , plus various visiting...
.
Football
White was an All-American footballAmerican football
American football is a sport played between two teams of eleven with the objective of scoring points by advancing the ball into the opposing team's end zone. Known in the United States simply as football, it may also be referred to informally as gridiron football. The ball can be advanced by...
halfback
Halfback (American football)
A halfback, sometimes referred to as a tailback, is an offensive position in American football, which lines up in the backfield and generally is responsible for carrying the ball on run plays. Historically, from the 1870s through the 1950s, the halfback position was both an offensive and defensive...
for the Colorado Buffaloes
Colorado Buffaloes
The University of Colorado Boulder sponsors 16 varsity sports teams. Both men's and women's team are called the Buffaloes or Golden Buffaloes . "Lady Buffs" referred to the women's teams beginning in the 1970s, but was officially dropped in 1993...
of the University of Colorado at Boulder, where he acquired the nickname "Whizzer" from a newspaper columnist. The nickname would follow him throughout his later legal and Supreme Court career, to White's chagrin. He also played basketball and baseball. After graduation he signed with the NFL
National Football League
The National Football League is the highest level of professional American football in the United States, and is considered the top professional American football league in the world. It was formed by eleven teams in 1920 as the American Professional Football Association, with the league changing...
's Pittsburgh Pirates
Pittsburgh Steelers
The Pittsburgh Steelers are a professional football team based in Pittsburgh, Pennsylvania. The team currently belongs to the North Division of the American Football Conference in the National Football League . Founded in , the Steelers are the oldest franchise in the AFC...
(now Steelers), playing there during the 1938 season
1938 Pittsburgh Pirates (NFL) season
- Week 1 : Detroit Lions :at Titan Stadium, Detroit, Michigan* Game time:* Game weather:* Game attendance: 17,000* Referee:Scoring Drives:* Detroit – FG Shepherd 27...
. He led the league in rushing in his rookie season and became the game's highest-paid player.
| Of all the athletes I have known in my lifetime, I'd have to say Whizzer White came as close to anyone to giving 100 percent of himself when he was in competition. |
| ~- Pittsburgh Pirates/Steelers owner Art Rooney Art Rooney Arthur Joseph "Art" Rooney, Sr. , often referred to as "The Chief", was the founding owner of the Pittsburgh Steelers American football franchise in the National Football League.-Family history:... |
After Oxford, White played for the Detroit Lions
Detroit Lions
The Detroit Lions are a professional American football team based in Detroit, Michigan. They are members of the North Division of the National Football Conference in the National Football League , and play their home games at Ford Field in Downtown Detroit.Originally based in Portsmouth, Ohio and...
from 1940 to 1941. In three NFL seasons, he played in 33 games. He led the league in rushing yards
Rush (American football)
Rushing has two different meanings in gridiron football .-Offense:The first is an action taken by the offensive team that means to advance the ball by running, as opposed to passing. A run is technically any play that does not involve a forward pass...
in 1938 and 1940, and he was one of the first "big money" NFL players, making $15,000 a year.
His career was cut short when he entered the United States Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
during World War II; after the war, he elected to attend law school
Law school
A law school is an institution specializing in legal education.- Law degrees :- Canada :...
rather than return to football. He was elected to the College Football Hall of Fame
College Football Hall of Fame
The College Football Hall of Fame is a hall of fame and museum devoted to college football. Located in South Bend, Indiana, it is connected to a convention center and situated in the city's renovated downtown district, two miles south of the University of Notre Dame campus. It is slated to move...
in 1954.
Military service
During World War II, White served as an intelligence officer in the United States NavyUnited States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
stationed in the Pacific Theatre
Pacific Theater of Operations
The Pacific Theater of Operations was the World War II area of military activity in the Pacific Ocean and the countries bordering it, a geographic scope that reflected the operational and administrative command structures of the American forces during that period...
. He had originally wanted to join the Marines but was kept out due to being colorblind. He wrote the intelligence report on the sinking of future President John F. Kennedy
John F. Kennedy
John Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....
's PT-109
Motor Torpedo Boat PT-109
PT-109 was a PT boat last commanded by Lieutenant, junior grade John F. Kennedy in the Pacific Theater during World War II...
. White was awarded two Bronze Star
Bronze Star Medal
The Bronze Star Medal is a United States Armed Forces individual military decoration that may be awarded for bravery, acts of merit, or meritorious service. As a medal it is awarded for merit, and with the "V" for valor device it is awarded for heroism. It is the fourth-highest combat award of the...
medals.
Personal life
White married Marion Stearns, the daughter of the president of the University of Colorado, and they would eventually have one son, Charles, and one daughter, Nancy.Legal career
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, graduating magna cum laude in 1946. During his years at Yale Law, he served as Chairman of the Conservative Party of the Yale Political Union
Yale Political Union
The Yale Political Union , a debate society now the largest student organization at Yale University, was founded in 1934 by Professor Alfred Whitney Griswold , to enliven the university's political culture of the time. It was modelled on the Cambridge Union Society and Oxford Union...
, preceded by Homer Daniels Babbidge and succeeded by Johnston Redmond Livingston.
After serving as a law clerk to Chief Justice Fred Vinson
Fred M. Vinson
Frederick Moore Vinson served the United States in all three branches of government and was the most prominent member of the Vinson political family. In the legislative branch, he was an elected member of the United States House of Representatives from Louisa, Kentucky, for twelve years...
, White returned to Denver.
White practiced in Denver for roughly fifteen years with the law firm now known as Davis Graham & Stubbs
Davis Graham & Stubbs
Davis Graham & Stubbs is a law firm, founded in Denver in 1915 by Mason Lewis and James Grant....
. This was a time in which the Denver business community flourished, and White rendered legal service to that flourishing community. White was for the most part a transactional attorney. He drafted contracts and advised insolvent companies, and he argued the occasional case in court.
During the United States presidential election, 1960
United States presidential election, 1960
The United States presidential election of 1960 was the 44th American presidential election, held on November 8, 1960, for the term beginning January 20, 1961, and ending January 20, 1965. The incumbent president, Republican Dwight D. Eisenhower, was not eligible to run again. The Republican Party...
, White put his football celebrity to use as chair of John F. Kennedy's campaign in Colorado. White had first met the candidate when White was a Rhodes scholar and Kennedy's father, Joseph Kennedy, was Ambassador to the Court of St. James. During the Kennedy administration, White served as United States Deputy Attorney General
United States Deputy Attorney General
United States Deputy Attorney General is the second-highest-ranking official in the United States Department of Justice. In the United States federal government, the Deputy Attorney General oversees the day-to-day operation of the Department of Justice, and may act as Attorney General during the...
, the number two man in the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
, under Robert F. Kennedy
Robert F. Kennedy
Robert Francis "Bobby" Kennedy , also referred to by his initials RFK, was an American politician, a Democratic senator from New York, and a noted civil rights activist. An icon of modern American liberalism and member of the Kennedy family, he was a younger brother of President John F...
. He took the lead in protecting the Freedom Ride
Freedom ride
Freedom Riders were civil rights activists who rode interstate buses into the segregated southern United States to test the United States Supreme Court decisions Boynton v. Virginia and Morgan v. Virginia...
rs in 1961, negotiating with Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
Governor John Malcolm Patterson
John Malcolm Patterson
John Malcolm Patterson is an American politician who was the 44th Governor of Alabama, from 1959 to 1963. Previously he served as State Attorney General ....
.
Supreme Court
Charles Evans Whittaker
Charles Evans Whittaker was an Associate Justice of the United States Supreme Court from 1957 to 1962.-Early years:...
, who retired for disability. Kennedy said at the time: "He has excelled at everything. And I know that he will excel on the highest court in the land." The 44-year-old White was approved by a voice vote. Upon the request of Vice President-Elect Al Gore
Al Gore
Albert Arnold "Al" Gore, Jr. served as the 45th Vice President of the United States , under President Bill Clinton. He was the Democratic Party's nominee for President in the 2000 U.S. presidential election....
, Justice White administered the oath of office on January 20, 1993 to the 45th U.S. Vice President. It was the only time White administered an oath of office to a Vice President.
White's Supreme Court tenure was the fourth-longest of the 20th century.
During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court, and his votes and opinions on the bench reflect an ideology that has been notoriously difficult for popular journalists and legal scholars alike to pin down. He was seen as a disappointment by some Kennedy supporters who wished he would have joined the more liberal
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
wing of the court in its opinions on Miranda v. Arizona and Roe v. Wade.
White often took a narrow, fact-specific view of cases before the Court and generally refused to make broad pronouncements on constitutional doctrine or adhere to a specific judicial philosophy. He preferred to take what he viewed as a practical approach to the law to one based in any legal philosophy. In the tradition of the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
, White frequently supported a broad view and expansion of governmental powers. He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 case of Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
. In his dissent in that case he noted that aggressive police practices enhance the individual rights of law-abiding citizens. His jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
has sometimes been praised for adhering to the doctrine of judicial restraint
Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
.
Substantive due process doctrine
Frequently a critic of the doctrine of "substantive due processSubstantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
and Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, White dissented in the controversial 1973 case of Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
. But White voted to strike down a state ban on contraceptives in the 1965 case of Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
, although he did not join the majority opinion, which famously asserted a "right of privacy" on the basis of the "penumbras" of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. White and Justice William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
were the only dissenters from the Court's decision in Roe, though White's dissent used stronger language, suggesting that Roe was "an exercise in raw judicial power" and criticizing the decision for "interposing a constitutional barrier to state efforts to protect human life." White, who usually adhered firmly to the doctrine of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
, remained a critic of Roe throughout his term on the bench.
White explained his general views on the validity of substantive due process at length in his dissent in Moore v. City of East Cleveland:
The Judiciary, including this Court, is the 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 even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in 1930s and 1940s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority.
White parted company with Rehnquist in strongly supporting the Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with Justice William J. Brennan in 1973's Frontiero v. Richardson
Frontiero v. Richardson
Frontiero v. Richardson, , was an Equal Protection case in which the Supreme Court decided that benefits given by the United States military to the family of service members cannot be given out differently because of gender....
that laws discriminating on the basis of sex should be subject to strict scrutiny. However, only three justices joined Brennan's plurality opinion in Frontiero; in later cases gender discrimination cases would be subjected to intermediate scrutiny (see Craig v. Boren
Craig v. Boren
Craig v. Boren, , was the first case in which a majority of the United States Supreme Court determined that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review...
).
White wrote the majority opinion in Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
(1986), which upheld Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
's anti-sodomy law against a substantive due process attack.
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.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
White's opinion in Bowers shows the consistency of his commitment to judicial restraint, and his opposition to usurpation of power
Usurper
Usurper is a derogatory term used to describe either an illegitimate or controversial claimant to the power; often, but not always in a monarchy, or a person who succeeds in establishing himself as a monarch without inheriting the throne, or any other person exercising authority unconstitutionally...
by the Judiciary. His argument in the case typified White's fact-specific, deferential style of deciding cases: White's opinion treated the issue in that case as presenting only the question of whether homosexuals had a fundamental right to engage in sexual activity, even though the statute in Bowers potentially applied to heterosexual sodomy (see Bowers, 478 U.S. 186, 188, n. 1). A year after White's death, Bowers was overruled in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
(2003).
Death penalty
White took a middle course on the issue of the death penalty: he was one of five justices who voted in Furman v. GeorgiaFurman v. Georgia
Furman v. Georgia, was a United States Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty. The case led to a de facto moratorium on capital punishment throughout the United States, which came to an end when Gregg v. Georgia was...
(1972) to strike down several state capital punishment statutes, voicing concern over the arbitrary nature in which the death penalty was administered. The Furman decision ended capital punishment in the U.S. until 1977, when Gary Gilmore
Gary Gilmore
Gary Mark Gilmore was an American criminal, and murderer, who gained international notoriety for demanding that his own death sentence be fulfilled following two murders he committed in Utah. He became the first person executed in the United States after the U.S...
, who decided not to appeal his death sentence, was executed by firing squad. White, however, was not against the death penalty in all forms: he voted to uphold the death penalty statutes at issue in Gregg v. Georgia
Gregg v. Georgia
Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 , reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon...
(1976), even the mandatory death penalty schemes struck down by the Court.
White accepted the position that the Eighth Amendment to the United States Constitution
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
required that all punishments be "proportional" to the crime; thus, he wrote the opinion in Coker v. Georgia
Coker v. Georgia
Coker v. Georgia, , held that the Eighth Amendment to the United States Constitution forbade the death penalty for the crime of rape of a woman.-Facts:...
(1977), which invalidated the death penalty for rape of a 16-year-old married girl. However, his first reported Supreme Court decision was a dissent in Robinson v. California
Robinson v. California
Robinson v. California, 370 U.S. 660 , was a case in which the Supreme Court of the United States held that the use of civil imprisonment as punishment solely for the misdemeanor crime of addiction to a controlled substance was a violation of the Eighth Amendment's protection against cruel and...
(1962), in which he criticized the Court for extending the reach of the Eighth Amendment. In Robinson the Court for the first time expanded the constitutional prohibition of “cruel and unusual punishments” from examining the nature of the punishment imposed and whether it was an uncommon punishment − as, for example, in the cases of flogging, branding, banishment, or electrocution − to deciding whether any punishment at all was appropriate for the defendant’s conduct. White said: “If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress.” Consistent with his view in Robinson, White thought that imposing the death penalty on minors
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
was constitutional, and he was one of the three dissenters in Thompson v. Oklahoma
Thompson v. Oklahoma
Thompson v. Oklahoma, 487 U.S. 815 , was the first case since the moratorium on capital punishment was lifted in the United States in which the U.S. Supreme Court overturned the death sentence of a minor on grounds of "cruel and unusual punishment."...
(1988), a decision that declared that the death penalty as applied to offenders below 16 years of age was unconstitutional as a cruel and unusual punishment.
Abortion
Along with Justice William RehnquistWilliam Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, White dissented in Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
(the dissenting decision was in the companion case, Doe v. Bolton
Doe v. Bolton
Doe v. Bolton, 410 U.S. 179 , was a landmark decision of the United States Supreme Court overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade, 410 U.S...
), castigating the majority for holding that the U.S. Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."
Civil rights
White consistently supported the Court's post-Brown v. Board of EducationBrown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
attempts to fully desegregate
Desegregation
Desegregation is the process of ending the separation of two groups usually referring to races. This is most commonly used in reference to the United States. Desegregation was long a focus of the American Civil Rights Movement, both before and after the United States Supreme Court's decision in...
public schools, even through the controversial line of forced busing cases. He voted to uphold affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
remedies to racial inequality in an education setting in the famous Regents of the University of California v. Bakke
Regents of the University of California v. Bakke
Regents of the University of California v. Bakke, was a landmark decision of the Supreme Court of the United States that ruled unconstitutional the admission process of the Medical School at the University of California at Davis, which set aside 16 of the 100 seats for African American...
case of 1978. Though White voted to uphold federal affirmative action programs in cases such as Metro Broadcasting, Inc. v. FCC
Metro Broadcasting, Inc. v. FCC
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 , was a case decided by the Supreme Court of the United States that held that intermediate scrutiny should be applied to equal protection challenges to federal statutes using benign racial classifications. The Court distinguished the previous year's...
, 497 U.S. 547 (1990) (later overruled by Adarand Constructors v. Peña, 515 U.S. 200 (1995)), White voted to strike down an affirmative action plan regarding state contracts in Richmond v. J.A. Croson Co.
City of Richmond v. J.A. Croson Co.
City of Richmond v. J.A. Croson Co., 488 U.S. 469 was a case in which the United States Supreme Court held that the city of Richmond's minority set-aside program, which gave preference to minority business enterprises in the awarding of municipal contracts, was unconstitutional under the Equal...
(1989).
White dissented in Runyon v. McCrary
Runyon v. McCrary
Runyon v. McCrary, 427 U.S. 160 , was a case heard before the United States Supreme Court which held that federal law prohibited private schools from discriminating on the basis of race...
(1976), which held that federal law prohibited private school
Private school
Private schools, also known as independent schools or nonstate schools, are not administered by local, state or national governments; thus, they retain the right to select their students and are funded in whole or in part by charging their students' tuition, rather than relying on mandatory...
s from discriminating on the basis of race. White argued that the legislative history of Title 42 U.S.C. § 1981 (popularly known as the "Ku Klux Klan
Ku Klux Klan
Ku Klux Klan, often abbreviated KKK and informally known as the Klan, is the name of three distinct past and present far-right organizations in the United States, which have advocated extremist reactionary currents such as white supremacy, white nationalism, and anti-immigration, historically...
Act") indicated that the Act was not designed to prohibit private racial discrimination, but only state-sponsored racial discrimination (as had been held in the Civil Rights Cases
Civil Rights Cases
The Civil Rights Cases, 109 U.S. 3 , were a group of five similar cases consolidated into one issue for the United States Supreme Court to review...
of 1883). White was concerned about the potential far-reaching impact of holding private racial discrimination illegal, which if taken to its logical conclusion might ban many varied forms of voluntary self-segregation, including social and advocacy groups that limited their membership to blacks: "Whether such conduct should be condoned or not, whites and blacks will undoubtedly choose to form a variety of associational relationships pursuant to contracts which exclude members of the other race. Social clubs, black and white, and associations designed to further the interests of blacks or whites are but two examples". Runyon was essentially overruled by 1989's Patterson v. McLean Credit Union, which itself was superseded by the Civil Rights Act of 1991
Civil Rights Act of 1991
The Civil Rights Act of 1991 is a United States statute that was passed in response to a series of United States Supreme Court decisions which limited the rights of employees who had sued their employers for discrimination...
.
Relationships with other justices
White said that he was most comfortable on Rehnquist's court. He once said of Earl WarrenEarl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
, "I wasn't exactly in his circle." On the Burger Court, the Chief Justice was fond of assigning important criminal procedure and individual rights opinions to White, because of his frequently conservative views on these questions.
Court operations and retirement
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
more often than many of his colleagues, and he wrote numerous opinions dissenting from denials of certiorari. After White (along with fellow Justice Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, who also took a liberal line in voting to grant certiorari) retired, the number of cases heard each session of the Court declined steeply.
White disliked the politics of Supreme Court appointments. During his interviews for clerks, he mostly wished to discuss football, not legal philosophies; at one point, he turned down future Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
for a clerkship. He retired in 1993, during Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
's presidency, saying that "someone else should be permitted to have a like experience." Clinton appointed Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, a judge from the Court of Appeals for the D.C. Circuit and a former Columbia University
Columbia University
Columbia University in the City of New York is a private, Ivy League university in Manhattan, New York City. Columbia is the oldest institution of higher learning in the state of New York, the fifth oldest in the United States, and one of the country's nine Colonial Colleges founded before the...
law professor, to succeed him.
Later years and death
After retiring from the Supreme Court, White occasionally sat with lower federal courts. He maintained chambers in the federal courthouse in Denver until shortly before his death. He also served for the Commission on Structural Alternatives for the Federal Courts of Appeals.White died on April 15, 2002 at the age of 84. He was the last living Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
Justice, and died the day before the fortieth anniversary of his swearing in as a Justice. From his death until the retirement of Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
, there were no living former Justices.
His remains are interred at All Souls Walk at the St. John's Cathedral in Denver.
Then-Chief Justice Rehnquist said White "came as close as anyone I have known to meriting Matthew Arnold
Matthew Arnold
Matthew Arnold was a British poet and cultural critic who worked as an inspector of schools. He was the son of Thomas Arnold, the famed headmaster of Rugby School, and brother to both Tom Arnold, literary professor, and William Delafield Arnold, novelist and colonial administrator...
's description of Sophocles
Sophocles
Sophocles is one of three ancient Greek tragedians whose plays have survived. His first plays were written later than those of Aeschylus, and earlier than or contemporary with those of Euripides...
: 'He saw life steadily and he saw it whole.' All of us who served with him will miss him."
Awards and honors
The NFL Players Association gives the Byron "Whizzer" White award to one NFL player each year for his charity work. Michael McCraryMichael McCrary
Michael Curtis McCrary is a former American Football defensive end who played for the Seattle Seahawks and the Baltimore Ravens for ten seasons in the NFL between 1993 and 2002. McCrary was a two time Pro Bowler in 1998 and 1999. McCrary was inducted to the Ravens' Ring of Honor in 2004...
, who was involved in Runyon v. McCrary, grew up to be a professional football player and won the Byron "Whizzer" White award in 2001.
The federal courthouse in Denver that houses the Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
is named after White.
White was posthumously awarded the Presidential Medal of Freedom
Presidential Medal of Freedom
The Presidential Medal of Freedom is an award bestowed by the President of the United States and is—along with thecomparable Congressional Gold Medal bestowed by an act of U.S. Congress—the highest civilian award in the United States...
in 2003 by President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
.
White was inducted into the Rocky Mountain Athletic Conference
Rocky Mountain Athletic Conference
The Rocky Mountain Athletic Conference is a college athletic conference which operates in the western United States, mostly in Colorado with some members in Nebraska and New Mexico...
Hall of Fame on July 14, 2007, in addition to being a member of the College Football Hall of Fame.
One of White's former law clerks, Dennis J. Hutchinson
Dennis J. Hutchinson
Dennis J. Hutchinson is a Senior Lecturer in Law at the University of Chicago, and Master of the undergraduate College's New Collegiate Division where he directs the Law, Letters, and Society program. His interests primarily lie in the field constitutional law, paying special attention to issues...
, wrote an unofficial biography of him called The Man Who Once was Whizzer White.
See also
- Demographics of the Supreme Court of the United StatesDemographics of the Supreme Court of the United StatesThe demographics of the Supreme Court of the United States encompass the gender, ethnic, religious, geographic, and economic backgrounds of the 112 justices appointed to the Supreme Court. Certain of these characteristics have been raised as an issue since the Court was established in 1789. For its...
- John F. Kennedy Supreme Court candidatesJohn F. Kennedy Supreme Court candidatesAlthough he was president for less than three years, John F. Kennedy appointed two men to the Supreme Court of the United States: Byron White and Arthur Goldberg...
- List of Justices of the Supreme Court of the United States by court composition
- List of Justices of the Supreme Court of the United States by education
- List of Justices of the Supreme Court of the United States by time in office
- List of law clerks of the Supreme Court of the United States
- List of United States Chief Justices by time in office
- List of Justices of the Supreme Court of the United States
- United States Supreme Court cases during the Burger Court
- United States Supreme Court cases during the Rehnquist Court
- United States Supreme Court cases during the Warren Court
Further reading
- Woodward, RobertBob WoodwardRobert Upshur Woodward is an American investigative journalist and non-fiction author. He has worked for The Washington Post since 1971 as a reporter, and is currently an associate editor of the Post....
and Armstrong, ScottScott Armstrong (journalist)Scott Armstrong is the current director of Information Trust, a former journalist for the Washington Post, and founder of the National Security Archive...
. The Brethren: Inside the Supreme Court (1979). ISBN 978-0-380-52183-8; ISBN 0-380-52183-0. ISBN 978-0-671-24110-0; ISBN 0-671-24110-9; ISBN 0-7432-7402-4; ISBN 978-0-7432-7402-9.
External links
- Oyez Project, U.S. Supreme Court media, Byron R. White.
- Bryon R. White, Supreme Court Historical SocietySupreme Court Historical SocietyThe Supreme Court Historical Society is a private, non-profit organization dedicated to preserving and communicating the history of the U.S. Supreme Court.-History:...
.