JUSTICE BYRON WHITE AND HIS CAREER ON THE COURT:
Individual Drive And Accomplishment, But The Lack Of A Legacy

By EDWARD LAZARUS

Thursday, Apr. 18, 2002

Justice Byron White, who passed away on Monday at the age of 84, personified the American Dream. He was born in the frontier outpost of Fort Collins, Colorado, the son of local store manager. By dint of exceptional energy, intelligence, and competitive drive, he became a collegiate and professional football legend, Rhodes Scholar, soldier, Supreme Court law clerk, Deputy Attorney General, and, at the age of 44, Supreme Court Justice.

He was a hero in the Gary Cooper mold. Steely-eyed, with a bone-breaking handshake, White cared nothing for the fame that dogged him from the early years of his football career. He was tough, austere, and purposive to the point of obsession. He even married his college sweetheart and stayed married to the end.

White's judicial career was a pure reflection of the man - not only his character, but where he grew up and when he came of age.

Bringing A Westerner's Individualism To the Bench

Although it is not so common now, in our super-transient society, to identify people by their geographic roots, White was a westerner through and through. He may have lived in Washington for much of his life, but his heart always seemed to lie closer to Colorado, where he held clerk reunions and returned for his last years.

In that vein, White voted consistently to give government strong tools to end and uproot segregation, even supporting the highly controversial remedy of cross-jurisdictional busing. But he drew the line at affirmative action and theories of discrimination that focused more on measuring racial outcomes than on identifying discriminatory acts.

So it was that in what may be White's most significant opinion in 31 years on the Court, the majority in Washington v. Davis, he ruled that a plaintiff suing under the Equal Protection Clause must show intentional discrimination by government, and not merely that some government action has led to a racially unequal outcome.

The Influence of Yale Law School's Anti-Laissez Faire, Anti-Roe Critique

The main thread of Justice White's jurisprudence, however, is not attributable to his western roots but to the age during which he grew up as a lawyer. Yale Law School, during the 1940s when White attended, was dominated by harsh critics of the then-vanquished Supreme Court majority that had struck down economic reforms in the name of freedom of contract and other laissez faire principles.

The burning question of the time, like the question of the validity of Roe v. Wade in recent years, was whether the Supreme Court, using the doctrine known as "substantive due process," could appropriately second-guess the legislative judgments of an elected legislature. For White's teachers, the answer was a resounding no.

It was a lesson White took to heart. If there is a hallmark to his tenure on the Court it would be White's devotion to twin ideas that likely derived from his days at Yale Law. The first was that courts should not second-guess legislative judgments, especially the judgments of Congress. The second was that it was wholly inappropriate for a judge to invoke the doctrine of substantive due process to substitute his (or her) moral or political judgments for those of elected officials.

Viewing White's jurisprudence through the prism of his post-New Deal training explains two sets of his opinions. First, it explains why White had no enthusiasm for the anti-federal government, pro-states' rights approach of the conservatives on the current Court, with whom White otherwise generally agreed.

Second, it explains why White dissented in Roe v. Wade and remained a staunch critic of that opinion and all others that created a right to privacy under the rubric of due process. Indeed, his most notorious opinion - the majority in Bowers v. Hardwick, dismissing the notion of constitutional protection for private consensual homosexual acts between adults - was for White nothing more than another application of his lifelong opposition to the substantive due process doctrine on which Michael Hardwick had rested his case.

The Influence of A Hard-Driving Temperament on Judicial Style

White competed with his fellow justices over the number of opinions he would author each term. He also made sure that his draft opinions circulated faster than those of the other justices, by imposing a ten-day rule on the delivery of drafts from his law clerks to him. (If they did not deliver on time, White would write the opinion himself).

Unfortunately, the consequence of this rapid-fire production process, especially when combined with White's general impatience with scholarly debate, is a compendium of blunt, conclusory, and generally forgettable opinions. White surely authored many significant decisions, but few if any memorable ones.

Some veteran court watchers I asked had to wrack their brains to come up with a single notable White opinion aside from Bowers. (Other candidates include INS v. Chadha in the field of separation of powers, United States v. Leon in criminal procedure, and his dissent in Miranda v. Arizona). Only Justices Hugo Black, William Douglas, and William Brennan served longer on the Court in this century. Yet unlike those peers, White put his personal stamp on not a single area of law.

This decisional style did more than rob White of a substantial legacy as a justice. It robbed all of us of a full and appropriate explanation for Court decisions of vast import. Bowers, for example, was a close case of enormous significance for the definition of personal liberty. Numerous precedents (albeit some with shaky doctrinal foundation) suggested that the constitutional "right to privacy" included a right to engage in private homosexual acts. Yet White's opinion dismissed the argument as "at best, facetious." That attitude may have made for quick circulation of the draft, and may have convinced other Justices to sign on by omitting any explanation about which they might have qualms, but it was simply wrong.

I suppose we are all to some extent prisoners of our life experiences. For Justice White, I think, that holds especially true. As personal history, in White's case, that meant nothing but one triumph after another. As judicial history, however, the result was rather less.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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