WHITE, BYRON R. (1917–)

In 1962 President john f. kennedy appointed Byron R. White to replace charles e. whittaker and become the ninety-third Justice to serve on the Supreme Court. White was forty-four years old and had no previous judicial experience. He had been a clerk for Chief Justice fred n. vinson in 1946–1947, however, and was the first former law clerk subsequently appointed to that tribunal. His only other significant government experience had come during the preceding year, after President Kennedy had appointed him deputy attorney general. White had managed the Justice Department, recruited lawyers, and evaluated candidates for federal judgeships. His civil rights enforcement experience included a stint in Montgomery, Alabama, where local authorities had failed to prevent mob violence against the freedom riders, an interracial group protesting racial segregation in public transportation. White restored order with the help of 400 federal marshals, providing Kennedy with a significant national victory over recalcitrant state officials.

Whatever White lacked in government experience, he made up in personal capacities. Born in rural Colorado, White came of age there during the Depression. He worked in the beet fields as a boy and later won a scholarship to the University of Colorado, where he was first in his class and an all American football player. He played professional football, and for several months, until the European outbreak of World War II, he studied as a Rhodes scholar in England, where he first met John Kennedy. He began studying law at Yale in 1939 and again topped his class. The war interrupted his studies, and he served as a naval intelligence officer in the South Pacific, where he again encountered Kennedy. He was graduated in 1946, and after his clerkship, returned to Colorado to practice law. In 1959 he organized support for Kennedy as the Democratic nominee for President. Following Kennedy's nomination, he chaired Citizens for Kennedy, a nationwide volunteer group. His public service followed.

When White joined the warren court, its most vigorous efforts to nationalize civil liberties and limit government power in favor of individual rights and egalitarian values lay just ahead. White voted regularly with the majority to invalidate discrimination against racial minorities and the politically powerless in areas such as school desegregation and reapportionment, and to sustain the constitutionality of federal civil rights legislation. Nonetheless, he acquired a reputation as a moderate-to-conservative Justice for his frequent dissents in major decisions, such as miranda v. arizona (1966), which imposed new constitutional limits on police discretion; for his willingness to uphold laws excluding communists from government positions; and for his general inclination toward judicial self-restraint.

With President richard m. nixon's four Court appointments from 1969–1971, the deferential positions White previously had articulated in dissent increasingly became majority views in the burger court. But White also dissented from decisions undermining egalitarian opinions he had joined in the Warren era. The Court had changed around him—not an uncommon occurrence for Justices serving for long periods.

The Court's shift, together with White's failure to articulate a comprehensive personal vision of an ideal balance of individual liberty and government power, has led some observers to conclude that White lacks a coherent judicial philosophy. The votes and written opinions of this independent, tough-minded jurist, however, do reveal a distinctive vision of the Supreme Court's role in constitutional law, a vision compatible with White's personal history.

One pervasive attitude in White's approach is skepticism and humility about the authority and capacity of the Court to second-guess the efforts of other government officials in dealing with difficult societal problems. White's opinions reflect deference to the good faith assessments and pragmatic judgments of police, administrative officials, and state and federal judges—particularly when he is convinced that they have readier access to relevant information than the Court does, or that government flexibility is needed. He reserves the highest deference for legislative judgments, out of respect for legislative power, especially that of the national Congress, as the most legitimate source of law in a democratic society. This second tenet emphasizes the primacy of legislative decisions in allocating the benefits and burdens of government programs, balancing individual rights and community needs, and structuring government operations.

The corollary is that White's deference disappears if good faith and pragmatism are absent. When prejudice infects government decision making, when the interests of the disadvantaged systematically are excluded from consideration in government processes, or when individual liberty is sacrificed for minimal public gain, White readily and consistently supports constitutional prohibitions. He embraces a strongly individualistic ideology that demands fair government treatment of citizens as individuals and holds ordinary citizens and government officials accountable for their individual conduct.

White's individualism produces a powerful egalitarian ethic that takes two different forms. One is constitutional invalidation of government action that treats people stereotypically, with insufficient regard for their individual worth, merits, and capacities. The other is constitutional approval of government efforts to equalize opportunities for the disadvantaged.

These general themes explain much of Justice White's participation in the Court's work. His opposition to stringent constitutional limits on law enforcement practices, absent significant abuse of a particular defendant's liberty, reflects deference to the difficulties of enforcement and the flexibility it requires, as well as to the judgment that guilty individuals have no great claim to benefit from police misconduct that has not harmed them. Deference, pragmatism, and rugged individualism underlie White's position in Miranda and his majority opinion in United States v. Leon (1984), establishing a good faith exception to the exclusionary rule. His Court opinions holding that the states must provide trial by jury if substantial imprisonment is possible, but that the states may convict with less than unanimous verdicts and with juries of only six members, illustrate a compromise between a belief in the importance of the jury in protecting individual liberty and tolerance for pragmatic modifications of its traditional features when the modifications do not seriously undermine its basic value. The heavy weight he has placed behind sanctioning guilty individuals gives way, however, when government interferes with a fair presentation of the defendant's side, as by denying the right to counsel. In civil cases, too, in contexts as diverse as procedural due process and the contract clause, he has tolerated pragmatic (and unbiased) responses to perceived governmental needs.

White's deference to national legislative power has led him to reject both federalism objections that Congress has usurped reserved state power, as in oregon v. mitchell (1970) and national league of cities v. usery (1976), and separation of powers objections that Congress has invaded the Court's or the President's power, as in his provocative dissents in northern pipeline construction co. v. marathon pipeline co. (1982), dealing with the powers of legislative courts in bankruptcy cases, and immigration and naturalization service v. chadha (1983), in which the majority struck down the legislative veto. He also opposed individual rights challenges to legislative efforts that promote equality, such as the affirmative action program upheld in fullilove v. klutznick (1980), and Congress's attempt to equalize campaign spending, partially invalidated over White's dissent in buckley v. valeo (1976). In these cases, deference and attachment to egalitarian values worked together; when they are in conflict, however, White tends to put aside deference and vote to strike down federal laws that discriminate on such invidious bases as race or sex.

White is as vigorous in opposing biased or arbitrary government judgments as he is in supporting justifiable, pragmatic ones. He will not invoke the Constitution to impose affirmative obligations on government, but will do so to prevent the government from imposing unfair burdens. He is reluctant to recognize constitutional immunities for even the highest level officials, preferring to hold that no one is above the law. That frequent theme appears most prominently in his dissent in nixon v. fitzgerald (1982), arguing that the President is legally accountable for abuse of government power, and in his opinions interpreting the speech and debate clause as fully immunizing members of Congress from inquiry into legislative conduct, but providing no immunity for nonlegislative acts.

More broadly, White has voted to invalidate government policies founded on prejudice or bad motive without more, but usually would not invalidate laws adopted with proper motives, whatever their impact. Thus, in washington v. davis (1976) White led the Court in making proof of intentional discrimination a necessary condition for finding a violation of the equal protection clause. He also would have made intent a sufficient condition, however, as he articulated in dissent in palmer v. thompson (1971). He has been both generous in finding proof of illicit intent and forceful in insisting that, once wrongdoing is shown, the harm be remedied fully, especially in cases of racial discrimination. And when the impact of governmental action significantly impairs the democratic process, as in reapportionment cases, White also has supported judicial intervention.

In first amendment cases, too, White is strict about disallowing government discrimination against disfavored viewpoints, but tolerant of significant limitations on individual expression that are inevitable byproducts of legitimate government aims, a theme illustrated by his opinion in broadrick v. oklahoma (1973). That opinion also represents White's consistent belief that the overbreadth and vagueness doctrines should be used only sparingly to strike statutes with a neutral and uncertain inhibiting effect on the general populace—a position readily held by a believer in hardy individualism. He is likewise unreceptive to arguments that the press needs wide immunity from libel and other actions lest fear of liability deter them from vigorous and important expression. Thus, although this Justice with considerable personal experience as the object of media attention strongly supported First Amendment limits on press liability for reporting about public officials, he vigorously dissented in gertz v. robert welch, inc. (1974) from the Court's granting the powerful media constitutional immunity from liability to helpless individuals who seek redress for the ravaging of their reputations. Indeed, he generally opposes affording the press any special privileges, except in cases of prior restraint or when the press serves as the public's monitor of government. Finally, White has been relatively deferential to regulations of obscenity and subversive advocacy, the former an example of deference to strong community views which invade little important freedom and the latter an example of deference to the community's right to protect its democratic character.

White's concern for the constitutional obligation to purge arbitrariness from government decision making extends naturally to questions of procedural fairness. Although White would allow government considerable flexibility in defining procedures, he has insisted that appropriate procedures be provided if government deprives a person of a government-created liberty or property entitlement, even if the government was under no initial obligation to create it. So conceived, procedural due process promotes individualized application of law on the basis of personal responsibility and guards against arbitrary decisions.

White's emphasis on equality and fair, if flexible, process generally stops short of imposing substantive limits on government policy. His normal disinclination to go beyond constitutional text or history and recognize new fundamental liberties tends to yield, however, when a state restricts personal autonomy by a law that deviates from most other states' laws or is of minimal efficacy in achieving proper objectives. Thus, White dissented in roe v. wade (1973), where the Court used substantive due process analysis to invalidate laws regulating abortion, but he concurred in griswold v. connecticut (1965), arguing that the state's atypical law against marital use of contraceptives violated substantive due process because of its "marginal utility to the declared objective" of deterring illicit sexual relationships. Similarly, he initially voted against the death penalty in Furman v. Georgia (1972), not because it constituted cruel and unusual punishment but because it was administered arbitrarily and too infrequently to achieve its deterrent aims. Later, he voted to uphold mandatory death penalty laws applied broadly and consistently. Still, he wrote the major opinion in coker v. georgia (1977), holding the death penalty for rape cruel and unusual, largely because most states had refrained from imposing it for crimes not producing death.

Normally, White's limited belief in natural rights jurisprudence surfaces as increased scrutiny of legislative means when government policy implicates broadly accepted liberties and the threat of inequality or arbitrariness is high. Perhaps not surprisingly, given his personal experience, he not only finds family choice fundamental, but educational opportunity, too. Thus, he has been especially adamant to invalidate school segregation, inequality of expenditures among a state's school districts, and school discipline that involves corporal punishment or lacks procedural safeguards. He is equally adamant that public aid to the secular functions of parochial schools, a policy that supports educational choice and quality, does not constitute a prohibited establishment of religion—a distinct minority view on the Court.

Jonathan D. Varat
(1986)

Bibliography

Israel, Fred 1969 Byron R. White. In Leon Friedman and Fred Israel, eds., The Justices of the Supreme Court: Their Lives and Major Opinions. Vol. 4:2951–2961. New York: Chelsea House.

Liebaman, Lance 1972 Swing Man on the Supreme Court. New York Times Magazine, October 8, 1972.

Sernard, Schwartz 1983 Super Chief: Earl Warren and His Supreme Court: A Judicial Biography. New York: New York University Press.

Woodward, Bob and Armstrong, Scott 1979 The Brethren: Inside the Supreme Court. New York: Simon & Schuster.