Supreme Court Jurist Was a Star on and Off the Bench
USA Today,
April 16, 2002
By Joan Biskupic
Retired Supreme Court Justice Byron White, whose success as a
scholar-athlete, military officer, John F. Kennedy confidante and long-tenured
jurist made him an American icon for most of the 20th century, died Monday. He
was 84.
White died of complications from pneumonia at a nursing home in Colorado,
where he first became a national figure as an All-America halfback at the
University of Colorado in the 1930s. He went on to play professionally for the
Pittsburgh Pirates (now the Steelers) and the Detroit Lions and was one of the
first big-money players in the National Football League, making $15,800 in
1938. He led the league in rushing yards that year and in 1940. In pro ball he
was a flash of brilliance, playing only three years but making such an impact
that he was elected to the sport’s Hall of Fame in 1954.
The college nickname of "Whizzer" would—to White’s chagrin—endure
even through his tenure in the Kennedy administration’s Justice Department
(news—web sites) and as a member of the nation’s highest court for 31
years.
White, known for his fierce competitiveness, intelligence and commitment to
public service, left his most significant legacy in the legal arena.
Gruff-voiced with a vise-like handshake, White was a jurist who said he
decided each case on its own facts and resisted broad judicial philosophies.
Even so, he was known for his regard for the power of Congress—an
approach at odds with today’s high court majority and its suspicion of
expansive federal power. White was a consistent vote for federal affirmative
action, for voting rights and for expanding the national government’s
authority over the states.
But he dissented in some of the court’s best-known liberal rulings. They
included Miranda vs. Arizona, a 1966 decision in which the court required
police to advise suspects in custody of their right to remain silent, and Roe
vs. Wade in 1973, which made abortion legal nationwide.
In 1986, White was the author of the court’s opinion in Bowers vs.
Hardwick, in which the justices upheld a state criminal ban on sodomy and said
that the U.S. Constitution does not protect private, consensual homosexual
conduct. That would become his most controversial opinion.
His tenure on the high court—the fourth longest of the 20th century—began
when President Kennedy appointed him in 1962 and ended when he retired in
1993. As he left public life, White said in his usual understated style that
"someone else should be permitted to have a like experience." His
successor was Ruth Bader Ginsburg (news—web sites), then a U.S. appeals
court judge.
White had been in declining health and had moved from Washington, D.C.,
back to Denver last year.
Chief Justice William Rehnquist (news—web sites), who besides White was
the court’s only dissenter in the 7-2 Roe vs. Wade ruling, said in a
statement Monday that White "came as close as anyone I have known to
meriting (poet) 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."
President Bush (news—web sites) called White "a distinguished jurist
who served his country with honor and dedication."
Ginsburg recalled a comment by the late Justice Potter Stewart, who was at
Yale Law School with White in 1940 when White led the NFL in rushing and
simultaneously earned Yale’s prize for the highest grades: "He was, in
reality, both Clark Kent and Superman."
Last of the Warren Court
White’s death closes out an era.
He was the only living former justice and the last survivor of the historic
court led by Chief Justice Earl Warren from 1953 to 1969. Through a broad
reading of the Constitution, that court ushered in an era of school
desegregation, created due-process safeguards for criminal defendants and laid
the groundwork for rights to personal privacy and abortion.
White voted with his then-brethren in holding an expansive view of the
Constitution’s authority to ensure equal protection under the law,
particularly to end racial segregation. But he split from the Warren Court’s
majority on defendants’ rights, vigorously siding with police and
prosecutors, and he backed only a limited right to personal privacy.
Before his appointment to the court, White was a deputy to Attorney General
Robert F. Kennedy. In one of his most celebrated actions, White took the lead
for the Kennedy administration in the spring of 1961 to protect the Freedom
Riders, the young blacks and whites protesting segregation in the South.
A man of few words and a resolute demeanor, White faced down Alabama Gov.
John Patterson, who was in league with the Ku Klux Klan and refused to
guarantee protection for the Freedom Riders. The civil rights activists had
been pulled from the buses and beaten by Klansman and other locals while
traveling across Alabama.
John Kennedy first met White in England in 1939, when White was a Rhodes
Scholar at Oxford and Kennedy’s father, Joseph, was the U.S. ambassador to
the Court of St. James’s. Then, during World War II, White was a Navy
intelligence officer in the South Pacific and wrote the official report of the
sinking of Kennedy’s boat, the PT-109.
University of Chicago law professor Dennis Hutchinson, who wrote a
biography of White entitled The Man Who Once Was Whizzer White, said that in
an era that lionized judicial reformers such as Warren, "Byron White was
a non-conformist." He said White once told a friend that "judges
have an exaggerated view of their role in our polity."
"He didn’t fit the role of an intellectual, ethereal judge,"
Hutchinson said in an interview. "He was a looming physical presence. He
went after arguments aggressively, wrestling them to the ground."
On the bench, White was a fierce questioner who seemed to delight in
backing a lawyer into a corner. When an evasive advocate had to concede a
point, White would swing back in his leather chair, a look of satisfaction
across his face.
Muscular and just over 6 feet tall, White didn’t walk as much as sprint.
And even though he detested references to his athletic prowess, it was always
there. At the Supreme Court, he sometimes could be heard heading to the
top-floor gym, bouncing a basketball on the marble floors along the way.
On Monday, Justice Antonin Scalia (news—web sites) recalled "his
painfully firm handshake: You had to squeeze back hard or he would hurt you. I
always thought that an apt symbol for his role on this court. He worked hard
and well, and by doing so forced you to do the same."
After he retired in 1993, he helped federal appeals courts hear cases.
In the end, after serving under three chief justices, White said he felt
most comfortable on the conservative Rehnquist Court. Decades earlier, he had
said of his relationship to the liberal Warren, "I wasn’t exactly in
his circle."
‘He has excelled at everything’
White was born on June 8, 1917, in Fort Collins, Colo. He grew up in nearby
Wellington, where his father, Alpha Albert White, was a lumber dealer and
mayor. His mother was Maude Burger White.
Like his only sibling, older brother Clayton Samuel, White ranked first in
his high school class and won a scholarship to the University of Colorado.
During his senior year, White was student body president and a top athlete
in football, basketball and baseball. It was while he was a college gridiron
star that a newspaper columnist dubbed him "Whizzer White."
After graduating from the university in 1938, he played pro ball in
Pittsburgh and quickly became a star, leading the NFL in rushing as a rookie
with 567 yards in 11 games.
But he was uncomfortable being the focus of attention and hated the glare
of the media that came with success.
In later years as a justice, he would be known for his criticism of the
press and his narrow readings of free speech rights under the First Amendment.
White went to Oxford on a Rhodes Scholarship in 1939 but when World War II
erupted, he returned to the United States. He alternated between playing pro
football—then for the Detroit Lions—and studying law at Yale University.
White interrupted his academic and athletic pursuits to join the Navy in
1942. His first choice was the Marines, but colorblindness kept him out. He
was awarded two Bronze Stars.
White returned to New Haven and graduated from Yale law school in 1946,
magna cum laude. He immediately landed a coveted position as a law clerk to
Chief Justice Fred Vinson. In 1946, White married Marion Stearns, the daughter
of the then-president of the University of Colorado. The Whites eventually
would have a son and daughter.
After his one-term clerkship, White returned home and practiced law for a
large firm in Denver. The state Democratic Party urged him to run for various
state and national offices, but he refused. In 1960 he helped with Kennedy’s
presidential campaign, drumming up support for the Massachusetts senator in
the West.
After Kennedy won, White became deputy attorney general and soon played a
leading role in efforts to desegregate schools and integrate public
accommodations.
The following year, when Justice Charles Whittaker retired, Kennedy
nominated White, apparently with little hesitation.
"He has excelled at everything," the president said then.
"And I know that he will excel on the highest court in the land."
In marked contrast to the divisive affairs that Supreme Court nominations
are today, the Senate approved White, then 44, by a voice vote. He was sworn
in as a justice 40 years ago today.
By the end of his tenure, White often was described as evolving into a
jurist far more conservative than Kennedy might have envisioned. But when he
stepped down, the liberal era was long gone and the majority was more inclined
to leave society’s problems to elected lawmakers.
White’s most controversial decision was his 1986 majority opinion
upholding Georgia’s ban on consensual homosexual conduct. Yale University
law professor Kate Stith, who was a law clerk to White in 1978-79, said White
saw the issue in the same way he viewed abortion rights.
"The question was whether the court should bypass political
institutions to establish a new social order," Stith said. "His
answer was no."
Stith added, "He should be remembered as a person who put the
institution of the court and the welfare of the country ahead of his own
ambition and reputation. He was personally very modest. He played an important
role in many areas of the law, but he was not looking for personal fame."
White is survived by his wife, Marion, son Charles Byron White and daughter
Nancy White Lippe.
White is likely to be recalled by many for his legendary athletic ability,
Hutchinson said. The biographer noted that when White was in a restaurant in
the 1960s, nearly three decades after he had played football, a waitress
asked, "Say, aren’t you Whizzer White?"
White answered, "I was."
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