Byron White

Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional football player and jurist who served as an associate justice of the U.S. Supreme Court from 1962 until his retirement in 1993.

Born and raised in Colorado, White played college football, basketball, and baseball for the University of Colorado, finishing as a consensus All-American and the runner-up for the Heisman Trophy in 1937. He was the fourth overall selection of the 1938 NFL Draft—taken by the Pittsburgh Pirates—and led the National Football League in rushing yards in his rookie season. White spent a year at Oxford University as a Rhodes Scholar before his admission to Yale Law School in 1939, during which period he played for the Detroit Lions in the 1940 and 1941 seasons while still attending law school. During World War II, he served as an intelligence officer with the United States Navy in the Pacific Theatre. After the war, he graduated from Yale Law School ranked first in his class and clerked for Chief Justice Fred M. Vinson.

White entered private practice in Denver, working primarily as a transactional attorney. He served as the Colorado state chair of John F. Kennedy's 1960 presidential campaign and accepted appointment as the U.S. Deputy Attorney General in 1961. The next year, President Kennedy successfully nominated White to the Supreme Court where he became its first justice from Colorado. He retired in 1993 and was succeeded by Ruth Bader Ginsburg.

White viewed his own court decisions as based on the facts of each case rather than as representative of a specific legal philosophy. He wrote the majority opinion in cases including ''Coker v. Georgia'', ''Washington v. Davis'' and ''Bowers v. Hardwick''. He wrote dissenting opinions in notable cases such as ''Miranda v. Arizona'', ''Immigration and Naturalization Service v. Chadha'', '' NCAA v. Board of Regents of the University of Oklahoma'', and ''Roe v. Wade''.

Early life and education

Byron Raymond White was born in Fort Collins, Colorado on June 8, 1917; he was the younger son of Maude Elizabeth (née Burger) and Alpha Albert White. Despite being poor German settlers that never attended high school, White's parents placed an emphasis on his education and were active in the local community. Both White and his brother, Clayton "Sam" Samuel White, were raised in the nearby town of Wellington where they attended the local high school. As a young student, White worked odd jobs to support his family during the town's decline in the 1920s; these included roles in harvesting beet, shoveling coal, and hard construction work among other forms of manual labor. In his junior year, he and his brother rented out land and spent long hours in the fields, during which time White adopted a lifelong habit of smoking. Sam, four years White's senior, became an accomplished student and athlete that graduated as valedictorian, earning a scholarship to study at the University of Colorado where he was later elected by the university to become a Rhodes scholar. Whereas Sam was gregarious and socially active, White was described as a taciturn boy who "was very quiet, measuring every single word, showing no emotion, and revealing nothing."

White excelled academically in high school, graduating in 1934 as the class valedictorian of his small class of six with the highest grades in the school's history. He worked hard in order to attain a scholarship to attend college, later describing his philosophy in Wellington as "do your work and don't be late for dinner." He followed his brother's footsteps in attending the University of Colorado Boulder on the scholarship offered to all Colorado high school valedictorians, intending to go to medical school and major in chemistry. Though he joined the Phi Gamma Delta fraternity on campus, White sticked to a strict routine of working and studying with little to no social life. However, he would become a star athlete after playing as an All-American halfback for the Colorado Buffaloes football team, winning a series of victories and becoming one of the best players in the country.

In 1935, Sam White was awarded a Rhodes Scholarship to study at Oxford University. After the news of his brother's success became a local sensation, White saw his brother as an inspiration and felt pressured to excel academically. He served as student body president his senior year, switched his major to the humanities, and graduated Phi Beta Kappa and valedictorian from the University of Colorado in 1938 with a Bachelor of Arts degree in economics. In his last year, the Colorado Buffaloes went undefeated, and White's status as a football star earned him the moniker "Whizzer White" by the student newspaper. After months of study, White also attained the Rhodes Scholarship, deferring it for a year to play pro football before attending Hertford College. During his time in England, White became acquainted with Joe and Jack Kennedy, as their father Joseph Kennedy was the U.S. ambassador to London.

NFL career and law school

White 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 later enrolled at Yale Law School in 1939. In a 2000 interview, White said that he was supposed to enroll at Harvard Law School, but got sick on the train ride there, so he got off the train in New Haven, Connecticut and went to Yale. White earned the highest grades in the first-year class, but he turned down an editorship of the '' Yale Law Journal'' and took a leave of absence to play football with the Detroit Lions, again leading the league in rushing in 1940. 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 per year (). White used the money he earned playing football to pay his law school tuition.

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.Dennis J. Hutchinson, ''The Man Who Once Was Whizzer White: a Portrait of Justice Byron R. White'', (Glencoe, The Free Press, 1998)

Military service

During World War II, White served as an intelligence officer in the Navy, and was stationed in the Pacific Theatre. He 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''. For his service, White was awarded two Bronze Star medals, and was honorably discharged as a lieutenant commander in 1945.

Legal career

After his military service, White returned to Yale Law School, graduating in 1946 ranked first in his class with a Bachelor of Laws degree, '' magna cum laude'', and membership in the Order of the Coif. White served as a law clerk to Chief Justice Fred M. Vinson of the U.S. Supreme Court from 1946 to 1947, then returned to Colorado and entered private practice in Denver 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's. 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.

Supreme Court

On April 3, 1962, President Kennedy nominated White as an associate justice of the Supreme Court, to succeed Charles Evans Whittaker. Regarding his longtime friend, the president said at the time: "He has excelled at everything. And I know that he will excel on the highest court in the land." White was confirmed on April 11, 1962, by a voice vote. He took the judicial oath of office on April 16, 1962, and served until June 28, 1993. His Supreme Court tenure was the fourth-longest of the 20th century.

Upon the request of Vice President-Elect Al Gore, White administered the oath of office on January 20, 1993, to Gore. 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 had 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, preferring what he viewed as a practical approach to the law. 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 ''Miranda v. Arizona''. In that dissent, he said 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 was a joint dissent with Justice Clark in '' Robinson v. California'' (1962), foreshadowing 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 ''Roe v. Wade''. 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 and frequently voted to uphold laws restricting abortion, including in ''Planned Parenthood v. Casey'' in 1992.

White explained his general views on the validity of substantive due process at length in his dissent in ''Moore v. City of East Cleveland'' (1977):

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 the 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 such laws should be subject to strict scrutiny. Only three justices joined Brennan's plurality opinion in ''Frontiero''; later gender discrimination cases would be subjected to intermediate scrutiny (see ''Craig v. Boren''). In ''Rostker v. Goldberg'', White joined Brennan and Marshall in dissent arguing that male-only Selective Service registration was unconstitutional.

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 his fact-specific, deferential style, treating the issue in that case as presenting only the question of whether homosexuals had a fundamental right to privacy, even though the statute in ''Bowers'' potentially applied to heterosexual sodomy. 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 way in which the death penalty was administered. The Furman decision ended capital punishment in the U.S. until the court's ruling in '' Gregg v. Georgia'' (1976). In that case, White voted to uphold Georgia's new capital punishment law.

White accepted the position that the Eighth Amendment to the United States Constitution required that all punishments be "proportional" to the crime; thus, in ''Coker v. Georgia'' (1977), he wrote the opinion that invalidated the death penalty for rape of a 16-year-old married girl. 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)), he 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. He argued that the legislative history of 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 often assigned important criminal procedure and individual rights opinions to White because of his frequently conservative views on these questions.

Court operations and retirement

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 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." When he retired, White was the last veteran of the Warren Court to remain on the bench. Clinton nominated (and the Senate approved) Justice Ruth Bader Ginsburg, a judge from the U.S. Court of Appeals for the D.C. Circuit and a former Columbia University 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 of pneumonia on April 15, 2002, at the age of 84. He was the last living Justice to have served on the Warren Court, 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 in 2006, 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."

Personal life

White first met his wife Marion Stearns (1921–2009), the daughter of the president of the University of Colorado, when she was in high school and he was a college football player. 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.

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.

Awards and honors

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''.Oxford: Oxford University Press, 1998. ;

See also

* Demographics of the Supreme Court of the United States
* John F. Kennedy Supreme Court candidates
* List of justices of the Supreme Court of the United States
* List of justices of the Supreme Court of the United States by court composition
* List of law clerks of the Supreme Court of the United States (Chief Justice)
* List of law clerks of the Supreme Court of the United States (Seat 6)
* List of NCAA major college football yearly rushing leaders
* List of NCAA major college football yearly scoring leaders
* List of NCAA major college football yearly total offense leaders
* List of United States Supreme Court cases by the Burger Court
* List of United States Supreme Court cases by the Rehnquist Court
* List of United States Supreme Court cases by the Warren Court
* List of United States Supreme Court justices by time in office

Footnotes

References

Sources

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Further reading

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* Woodward, Robert and Armstrong, Scott. '' The Brethren: Inside the Supreme Court'' (1979). ; . ; ; ; .

External links

Byron White
at the ''Biographical Directory of Federal Judges'', a public domain publication of the Federal Judicial Center.

Oyez Project, U.S. Supreme Court media, Byron R. White
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University of Colorado Athletics Hall of Fame
– Byron White

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