Byron White: Wikis

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Byron Raymond White


In office
April 12, 1962[1] – June 28, 1993
Nominated by John F. Kennedy
Preceded by Charles Evans Whittaker
Succeeded by Ruth Bader Ginsburg

In office
1961 – 1962
President John F. Kennedy
Preceded by Lawrence E. Walsh
Succeeded by Nicholas Katzenbach

Born June 8, 1917(1917-06-08)
Fort Collins, Colorado, United States
Died April 15, 2002 (aged 84)
Denver, Colorado, United States
Alma mater University of Colorado
Hertford College, Oxford
Yale Law School
Religion Episcopalin

Byron Raymond "Whizzer" White (June 8, 1917 – April 15, 2002) won fame both as a football running back 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.[2]

Contents

Education

After graduating at the top of his Wellington high school class, White attended the University of Colorado at Boulder on a scholarship.[2] He joined the Phi Gamma Delta fraternity[3] and served as student body president his senior year.[2] 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.[4]

Football

Byron White
No. 24     
Half back
Personal information
Date of birth: June 8, 1917(1917-06-08)
Date of death: April 15, 2002 (aged 84)
Height: 6 ft 1 in (1.85 m) Weight: 187 lb (85 kg)
Career information
College: Colorado
NFL Draft: 1938 / Round: 1 / Pick: 4
Debuted in 1938 for the Pittsburgh Steelers
Last played in 1941 for the Detroit Lions
Career history
 As player:
Career highlights and awards
Stats at NFL.com
College Football Hall of Fame

White was an All-American football halfback[2] for the Colorado Buffaloes of the University of Colorado at Boulder, where he acquired the nickname "Whizzer"[5] from a newspaper columnist. The nickname would follow him throughout his later legal and Supreme Court career, to White's chagrin.[2] He also played basketball and baseball. After graduation he signed with the NFL's Pittsburgh Pirates (now Steelers),[2] playing there during the 1938 season. He led the league in rushing in his rookie season and became the game's highest-paid player.[2]

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.[6]
~- Pittsburgh Pirates/Steelers owner Art Rooney

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.[2] 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.[7]

Military service

During World War II, White served as an intelligence officer in the United States Navy stationed in the Pacific Theatre. He had originally wanted to join the Marines but was kept out due to being colorblind.[2] He wrote the intelligence report on the sinking of future President John F. Kennedy's PT-109.[7] White was awarded two Bronze Stars.[2]

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.[2]

Legal career

Byron White (left) with Robert Kennedy in 1961

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.[7]

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

White practiced in Denver for roughly 15 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[7].

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[2]. 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 Patterson[2].

Supreme Court

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

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."[2] The 44-year-old White was approved by a voice vote.[2] As customary, 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.[2] During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court,[2] 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.[4]

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.[2][4] In the tradition of the New Deal, White frequently supported a broad view and expansion of governmental powers.[2][8] He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 case of Miranda v. Arizona.[2] 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.[9]

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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 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.[10]

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 four justices signed on to Brennan's 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.[2]

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 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 reversed 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;[11] 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 was a dissenter in the Roe v. Wade decision 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.[12] 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:[13] "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 that he was most comfortable on Rehnquist's court. He once said of Earl Warren, "I wasn't exactly in his circle."[2] 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 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.[14]

White disliked the politics of Supreme Court appointments.[7] 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.[5] He retired in 1993, during Bill Clinton's presidency, saying that "someone else should be permitted to have a like experience."[2] 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.

Later years and death

After retiring from the Supreme Court, White occasionally sat with lower federal courts.[2] 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.[15]

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.[2]

His remains are interred at All Souls Walk at St. John's Cathedral in Denver.[16][17]

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."[2]

Awards and honors

The NFL Players Association gives the Byron "Whizzer" White award to one NFL 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 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.[18]

White was inducted into the Rocky Mountain Athletic Conference Hall of Fame on July 14, 2007,[19] 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.[20]

See also

References

  1. ^ "Federal Judicial Center: Byron White". 2009-12-12. http://www.fjc.gov/servlet/tGetInfo?jid=2566. Retrieved 2009-12-12. 
  2. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z Joan Biskupic (2002-04-15). Ex-Supreme Court Justice Byron White dies. USA Today. http://www.usatoday.com/news/nation/2002/04/15/white-obit.htm. Retrieved 2008-10-20. 
  3. ^ https://www.phigam.org/NetCommunity/SSLPage.aspx?pid=888
  4. ^ a b c Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. http://books.google.com/books?id=Fy8DjOIxDm0C. Retrieved 2008-10-21. 
  5. ^ a b Jan Crawford Greenburg (2007). Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Penguin Group. http://books.google.com/books?id=SQxqXLSy9wcC&pg=PA290&lpg=PA290&dq=alito+handsome&source=bl&ots=tc-uLNG1_3&sig=dt0LENnnzX_lWGDDDWb5baJjzkM&hl=en&sa=X&oi=book_result&resnum=3&ct=result. Retrieved 2008-10-20. 
  6. ^ Tagliabue, Paul (2003). "A Tribute to Byron White". Yale Law Journal (Yale University) 112. http://www.questia.com/googleScholar.qst;jsessionid=LJHd2V1286LRkBzwPPf8FpCdCB666T2Z0gDNh28Gr8Ys9Fc2GYph!-1659539997!-1970812899?docId=5001918990. 
  7. ^ a b c d e Dennis J. Hutchinson, The Man Who Once Was Whizzer White: a Portrait of Justice Byron R. White, (Glencoe, The Free Press, 1998)
  8. ^ (see New York v. United States, 488 U.S. 1041 (1992) (White, J., concurring in part and dissenting in part)).
  9. ^ (See Dennis Hutchinson, "Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court," 74 U. Colo. L. Rev. 1409 (2003)).
  10. ^ (See Thornburg v. American Coll. of Obst. & Gyn. 476 U.S. 747 (1986) (White, J., dissenting))
  11. ^ (see Harmelin v. Michigan, 501 U.S. 957 (1991) (White, J., dissenting))
  12. ^ (See Milliken v. Bradley (White, J., dissenting)).
  13. ^ See Runyon, 427 U.S. 160, 212 (White, J., dissenting)
  14. ^ See David M. O'Brien, The Rehnquist Court's Shrinking Plenary Docket, 81 Judicature 58-65 (September/October 1997).
  15. ^ Justice Byron R. White The Third Branch
  16. ^ Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17 - 41 (19 Feb 2008), University of Alabama.
  17. ^ Byron White at Find a Grave
  18. ^ Presidential Medal of Freedom Recipients, retrieved 2009-07-30
  19. ^ "RMAC to honor 'Whizzer'". CUBuffs.com. 2007-02-25. http://buffzone.com/news/2007/feb/25/rmac-to-honor-whizzer/. Retrieved 2007-02-25. 
  20. ^ Oxford Oxfordshire: Oxford University Press, 1998. ISBN 0684827948; ISBN 978-0684827940

Further reading

  • Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3. 
  • Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267. 
  • Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774. 
  • Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356. 
  • Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543. 
  • Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761. 
  • Woodward, Robert and Armstrong, Scott. The Brethren: Inside the Supreme Court (1979). ISBN 9780380521838; ISBN 0380521830. ISBN 9780671241100; ISBN 0671241109; ISBN 0743274024; ISBN 9780743274029.

External links

Legal offices
Preceded by
Lawrence E. Walsh
United States Deputy Attorney General
1961–1962
Succeeded by
Nicholas Katzenbach
Preceded by
Charles Evans Whittaker
Associate Justice of the Supreme Court of the United States
April 12, 1962 – June 28, 1993
Succeeded by
Ruth Bader Ginsburg

Quotes

Up to date as of January 14, 2010

From Wikiquote

We're the only branch of government that explains itself in writing every time it makes a decision.

Byron Raymond White (June 8, 1917April 15, 2002) won fame both as a football running back 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.

Sourced

  • As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.
    • Dissenting from the decision of the US Supreme Court in Doe v. Bolton, 410 U.S. 179 at 222 (1973); also applied to Roe v. Wade, 410 U.S. 113 (1973).
  • It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.
  • We're the only branch of government that explains itself in writing every time it makes a decision.
    • Reported by Evan Thomas in Time Magazine, Oct. 08, 1984, in response to the assertion that the Supreme Court is the most secretive branch in terms of carrying out its deliberations.
  • The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time…. Respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.
  • 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.
  • While the collateral consequences of drugs such as cocaine are indisputably severe, they are not unlike those which flow from the misuse of other, legal, substances.

About White

  • I cannot think of a single answer that I made in the years that I argued before the Court while Justice White sat on it that seemed to satisfy him. While I won a number of cases that I argued before him, and he voted for my side in most of them, I never had the sense that anything I said pleased him. White, a former All-American running back (whose much-repeated college nickname, Whizzer, was one that appalled him), was no fan of press claims for broad First Amendment protection. He invariably asked questions that were both pointed and powerful.
    • Floyd Abrams, Speaking Freely: Trials of the First Amendment, (Viking Press, 2005), p. 71.
  • The same qualities that made him a memorable jurist would make him a lightning rod for fierce opposition if he were named to the Supreme Court now.
    • USA Today, April 17, 2002, quoted in US Senate Republican Policy Committee article, 25 April 2002, "The Left's Iron-Clad Litmus Test on Abortion: Justice White Could Not Be Confirmed Today".

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