Byron White

Byron Raymond "Whizzer" White (June 8, 1917 – April 15, 2002) won fame both as an American football halfback and as an associate justice of the Supreme Court of the United States. Born and raised in Colorado, White played in the National Football League for three seasons and practiced law for 15 years before his Supreme Court appointment. White was the Colorado state chair of John F. Kennedy's 1960 presidential campaign.
White was appointed to the Supreme Court by Kennedy in 1962. He viewed his own court decisions as based on the facts of each case rather than as representative of a specific legal philosophy. He retired in 1993 and is the twelfth longest-serving justice in Supreme Court history. He died in Denver at the age of 84. He was the first Supreme Court Justice from the state of Colorado.

Born in Fort Collins, Colorado, White was the younger son of Maude Elizabeth (Burger) and Alpha Albert White, neither of whom attended high school. He was raised in the nearby town of Wellington, where he obtained his high school diploma in 1934.

After graduating at the top of his tiny high school class of six, White attended the University of Colorado in Boulder on a scholarship, offered to all Colorado high school valedictorians, as his older brother Sam had done. He joined the Phi Gamma Delta fraternity and served as student body president his senior year. Graduating Phi Beta Kappa in 1938, he won a Rhodes Scholarship to the University of Oxford in England; after deferring it for a year to play pro football, he attended Hertford College, Oxford. During this time in England, he became acquainted with Joe and John Kennedy, as their father Joseph Kennedy was the U.S. ambassador in London.

College sports

White was an All-American halfback for the Colorado Buffaloes, where he acquired the nickname "Whizzer" from a newspaper columnist, which followed him throughout his later legal and Supreme Court career, to his chagrin. As a senior, White led Colorado to an undefeated 8–0 regular season in 1937, but they lost to favored Rice Institute of Houston 28–14 in the Cotton Bowl in Dallas on New Year's Day. He was the runner-up for the Heisman Trophy, behind Yale quarterback Clint Frank, and also played basketball and baseball at CU. The basketball team advanced to the finals of the inaugural National Invitation Tournament at Madison Square Garden in March 1938, a year before the first NCAA tourney.

White had originally planned to attend Oxford in 1938 and not play pro football. He was selected fourth overall in the 1938 NFL draft, held in December 1937, by the NFL's Pittsburgh Pirates (now Steelers), and became a Rhodes Scholar days later. Oxford allowed White to delay his start to early 1939, so he accepted the Pittsburgh offer in August and played the 1938 season in the NFL. He led the league in rushing as a 21-year-old rookie and was its highest-paid player. He sailed to England in early 1939, with the intent of staying for three years.

With the outbreak of World War II in late summer, White returned to the United States. He was admitted to Yale Law School in early October 1939, a week after classes began, and also played for the Detroit Lions in 1940 and 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 US$15,000 per year (equivalent to $260,000 in 2016).

His NFL career was cut short when he entered the U.S. Navy in 1942; after the war, he elected to finish law school rather than return to football. He was elected to the College Football Hall of Fame in 1954.

During the war, White served as an intelligence officer in the U.S. Navy, 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, and was discharged as a lieutenant commander.

White first met his wife Marion (1921–2009), the daughter of the president of the University of Colorado, when she was in high school and he was a college football star. During World War II, Marion served in the WAVES while her future husband was a Navy intelligence officer. They married in 1946 and had two children: a son named Charles Byron (Barney) and a daughter named Nancy. At the time of his death, White and his wife had moved back to Colorado and were living in Denver.

His older brother Clayton Samuel "Sam" White (1912–2004) was also a high school valedictorian and Rhodes Scholar. He later became a physician and medical researcher, particularly on the effects of atomic bomb blasts.

Byron White (left) with Robert Kennedy in 1961

After World War II, he completed his studies at Yale Law School, graduating magna cum laude in 1946.

After serving as a law clerk to Chief Justice Fred Vinson, White returned to Colorado.

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 economy flourished, and White rendered legal service to the business 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 1960 presidential election, 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 Riders in 1961, negotiating with Alabama Governor John Malcolm Patterson.

Byron White swearing in new Supreme Court Justice Clarence Thomas, as wife Virginia Lamp Thomas looks on in 1991

Message of President John F. Kennedy nominating Byron R. White to be an Associate Justice of the Supreme Court

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. He would serve until his retirement in 1993. His Supreme Court tenure was the fourth-longest of the 20th century.

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.

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.

Substantive due process doctrine

Frequently a critic of the doctrine of "substantive due process", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of the Fifth Amendment and Fourteenth Amendment, White's first published opinion as a Supreme Court Justice, a sole dissent in Robinson v. California (1962), foreshadowed his career-long distaste for the doctrine. In Robinson, he criticized the remainder of the Court's unprecedented expansion of the Eighth Amendment's prohibition of "cruel and unusual punishment" to strike down a California law providing for civil commitment of drug addicts. He argued that the Court was "imposing its own philosophical predilections" on the state in this exercise of judicial power, although its historic "allergy to substantive due process" would never permit it to strike down a state's economic regulatory law in such a manner.

In the same vein, he 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:

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 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.

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 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. Georgia, however, conceded during oral argument that the law would be inapplicable to married couples under the precedent set forth in Griswold v. Connecticut.). A year after White's death, Bowers was overruled in Lawrence v. Texas (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. Georgia (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.

Abortion

Along with Justice William Rehnquist, 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."

Civil rights

White consistently supported the Court's post-Brown v. Board of Education 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 schools 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.

Relationships with other justices

White said he was most comfortable on Rehnquist's court. He once said of Earl Warren, "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

White with other members of the Commission on Structural Alternatives for the Federal Courts of Appeals

White frequently urged the Supreme Court to consider cases when federal appeals courts were in conflict on issues of federal law, believing that resolving such was a primary role of the Supreme Court. Thus, White voted to grant certiorari more often than many of his colleagues; he also wrote numerous opinions dissenting from denials of certiorari. After White (along with fellow Justice Harry Blackmun, who also took often voted for liberal grants of certiorari) retired, the number of cases heard each session of the Court declined steeply.

White disliked the politics of Supreme Court appointments, but had great faith in representative democracy, responding to complaints about politicians and mediocrity in government with exhortations to "get more involved and help fix it." He retired in 1993, during Bill Clinton's presidency, saying that "someone else should be permitted to have a like experience." Clinton nominated (and the Senate approved) 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.

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 of pneumonia 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."

The NFL Players Association gives the Byron "Whizzer" White NFL Man of the Year Award to one player each year for his charity work. Michael McCrary, who was involved in Runyon v. McCrary, grew up to be a professional football player and won the award in 2000.

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 and the University of Colorado's Athletic Hall of Fame, where he is enshrined as "The Greatest Buff Ever".

One of White's former law clerks, Dennis J. Hutchinson, wrote an unofficial biography of him called The Man Who Once was Whizzer White.

• C-SPAN – Life of Byron White, discussed by Dennis Hutchinson (2011)