The MAN WHO ONCE WAS WHIZZER WHITE: A PORTRAIT OF JUSTICE BYRON R WHITE

White's reputation with the press as a Supreme Court justice suffered because, despite his personal pro-choice views and desire for privacy, he dissented in Roe v. Wade and, 13 years later, wrote the majority opinion in Bowers v. Hardwick, determining that "the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy," even behind closed doors.

Hutchinson argues persuasively that these opinions were the result of a consistent judicial philosophy that refused to view the judiciary as a legislature. In his dissenting opinion in Roe v. Wade, for example, White wrote, "This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." And in Bowers v. Hardwick, he commented, "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."

Dennis Hutchinson, a former clerk for White and a University of Chicago Law professor, has written a smooth-reading biography of White, although it suffers from some gaps in coverage caused by his subject's passive lack of cooperation. Although clearly sympathetic to his subject, he writes in a neutral tone that provides a thorough overview of the justice's press coverage and Supreme Court work, helped in the latter by interviews with several dozen clerks (and, no doubt, Hutchinson's own experience). A remarkable book about a remarkable man. --Ted Frank

Product Description

Before he became one of the longest-serving Supreme Court justices in American history, Byron R. White was Whizzer White: one of the last of the great scholar-athletes and an authentic American hero. Born to near-poverty, he became a college football sensation at the University of Colorado, carrying his obscure team to the Cotton Bowl and earning the nickname that he always detested but could never quite shake. He went on to become a Rhodes scholar, one of the most accomplished students in the history of Yale Law School, and then a pro football star. In 1938, still the ragtag days of football, he was the highest-paid player in the sport's history.

A World War II hero, he served with John E Kennedy and wrote the official naval intelligence report on the sinking of Kennedy's PT-109. Seventeen years later he helped run Kennedy's campaign for the presidency and in 1961 was named deputy attorney general. He was Robert Kennedy's right-hand man, providing on-the-spot management of protection for the Freedom Riders in Alabama in the spring of 1961, running the Justice Department when the attorney general was needed at the White House, and overseeing the appointment of more than one hundred federal judges. In 1962 President Kennedy nominated White to the Supreme Court, calling him "the ideal New Frontier judge."

White's early years of fame had left their mark. He had tasted celebrity and knew both its emptiness and its distraction. As a judge, he avoided publicity and wrote opinions unsympathetic to the media, which guaranteed unfavorable reviews in the press. He even shunned displays of virtuosity in his legal writing. Yet his impact on the Court and American law has been enormous.

He resisted tides of fashionable opinion, dissenting from much of the activism of the Warren Court, dissenting famously in Miranda v. Arizona and later in Roe v. Wade, and consistently holding to a model of judging that decided cases narrowly and avoided doctrinaire opinions.

The Man Who Once Was Whizzer White is based on dozens of archives and nearly two hundred interviews, including those with approximately half of White's former law clerks and with all of his principal colleagues in the Kennedy administration. For White's Court years, the book uses three key terms -- 1971, 1981, and 1991 -- to reveal detailed operations of the Supreme Court and White's often publicly invisible impact on the institution. The result is a biography that is fast-paced and rich, an achievement that brings both of Byron White's identities into a single, fascinating whole.

The litany of White's accomplishments and his early rise to the court serve to obscure the lines of his jurisprudence, which he never made an attempt to clarify. Hutchinson's principal accomplishment is to discern from the mass of White's opinions a sound jurisprudential framework obscured by bulk of White's output (1,275 opinions in 31 years), and in doing so refute the assertion that White was unpredictable.

Although White was popularly described as a conservative jurist, this confounds the term as it is used to describe a specific interpretive philosophy with the judicial tradition which White came to exemplify. Today judicial conservatism is virtually synonymous with "original meaning," the method of constitutional interpretation that holds that the Constitution means only what it was understood to mean by those whose assent made it law. This has certain implications, among them that the Congress's powers are limited to those enumerated, that the three branches of federal government and their powers are strictly separated, and that the states retain inviolable spheres of sovereignty. In this sense, White was not a conservative at all. Where, say, Justice Antonin Scalia would subscribe to these general notions, White would not. For instance, while Scalia believes that the law permitting the appointment of Independent Counsels violates the separation of powers doctrine (Morrison v. Olson), White sees it as a permissible experimentation with the form of government. And though Scalia believes that the powers of Congress are, however tangentially, limited (Lopez v. United States) and that the states retain areas of discretion where the Congress may not intrude (Printz v. United States), White views the powers of the Congress as essentially unlimited (Katzenbach v. McClung) and the states as retaining no sovereignty that the Congress is obliged to respect (Garcia v. San Antonio Metro. Transit Authority). Although Hutchinson views "New Deal liberal" and "pragmatist" as imperfect labels, his carefully wrought and insightful analysis of White's jurisprudence nonetheless establishes that they are fair and roughly approximate descriptions of Justice White.

In it's judicial aspect the New Deal generally sought to eliminate restrictions on the exercise of federal power. These breaks on government power were exemplified early in this century by an activist libertarian Supreme Court's invocation of natural rights and non-textual notions of substantive due process to strike economic regulation. Lochner v. New York, where the court struck down regulations on the working hours of bakers as a violation of their liberty to contract their labor, is perhaps the most famous bugbear of New Dealers. But restrictions also came in the form of the enumerated powers doctrine and in the form of early criminal procedure cases which, as Professor Akhil Reed Amar of Yale has noted, invoked natural law and private property rights, and thus restricted the government's policing powers. All of these, in one way or another, restricted federal action. Judges of New Deal era, then, had a distinctly negative ambition: To remove the restrictions on the exercise of federal power so that the Congress, acting with the Executive, could enact social reform.

The ambition of liberal judges changed, of course, with the rise of "the real Warren Court," which historian David P. Currie of the University of Chicago dates to the replacement of Justice Frankfurter by Arthur Goldberg late in 1962. "Willful judges," as Justice Scalia describes them, were no longer content with deferring to the overtly political branches, but were now eager to enact social reform themselves. The criminal procedure cases of the Warren Court were animated by the ideas that policing by the states was institutionally racist and that crime was a manifestation of disease, not evil, and should be addressed as a public health concern. Steeped in the New Deal idea of the judicial function, however, White largely dissented from Warren Court's innovations. He dissented from Miranda v Arizona, which mandated the now famous warnings to criminal suspects; prefiguring contemporary arguments, he wrote "there will not be a gain, but a loss, in human dignity" because under Miranda some criminals will be returned to the street to repeat their crimes.. White would also labor to limit the scope of rule excluding from trial illegally obtained evidence, and would dissent from Robinson v. California, where the court struck down a California statute criminalizing narcotics addiction. The court said that the state could not punish a person's "status" as an addict, only his conduct; White, sensibly enough, pointed out that addiction accrues through continuous willful behavior.

White was a pragmatist. He didn't believe that the provisions of the Bill of Rights had a "single meaning" or that constitutional provisions could be measured like the provisions of a deed, in "metes and bounds," but he was insistent that constitutional innovations be small and slow, and linked in a rational process. His father taught him that "You can't just stand on your rights all the time in a small town," and White had a lifetime aversion to "the angels of fashionable opinion," as Hutchinson memorably calls ideologues of various stripe. But White's contempt for philosophy could lead him astray. In Reitman v. Mulkey, White wrote the opinion of the court holding that California could not repeal a fair housing law because the repeal was motivated by animus toward minorities. In time, the case was precedent for the current Supreme Court's invalidation, in Romer v. Evans, of Colorado's attempt to deny homosexuals privileged legal status, and for a lower federal court to stay the implementation of California's Proposition 209, barring racial and sexual discrimination in state services. Pragmatism unguided by a philosophy lead White to judgments the long-term ill consequences of which he was not equipped to foresee.

However, White's small-step pragmatism and disdain for ideological enthusiasms kept him from joining most of the Warren and Burger Court's radical social agenda. Although he was willing to recognize, in Griswold v. Connecticut, a non-textual right to privacy permitting married couples access to contraception and even was willing to extend the right to non-married couples in Eisenstadt v. Baird, White famously and vigorously dissented from Roe v. Wade, privately telling people that he thought it was the only illegitimate decision the court made during his tenure. Perhaps just as upsetting to the votaries of judicial activism was White's majority opinion in Bowers v. Hardwick, which held that Georgia could constitutionally prohibit homosexual sodomy. White briskly dismissed the argument that homosexual activity was constitutionally protected: "[T]o claim that a right to engage in such conduct is `deeply rooted in this nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious."

In an sense, White was precisely the type of conservative -- one who slows progress, but does not reverse it; one who ratifies the past, whatever its content -- that liberals claim they want. Except for Roe, White would later vote to reaffirm precedent, on the basis of stare decisis, with which he had earlier disagreed. And yet, few modern justices -- except, perhaps, Justice Clarence Thomas -- have been the object of so much vitriol as White. When White retired in 1993, Jeffrey Rosen of the New Republic called White "a perfect cipher" and a "mediocrity," Bruce Ackerman of Yale said he was "out of his depth," and the New York Times' Tom Wicker called him the "bitterest legacy of the Kennedy Administration." The best Calvin Trillin, writing in The Nation, could say of White was "We count his loyalty to team a boon/The other side might well select a loon" -- this in backhanded praise that White retired during a Democratic administration. These facile slurs betray the mercurial enthusiasms of the age more than they carefully trace the lineaments of Justice White's jurisprudence and are therefore more reflective of their authors than White's jurisprudence.

In many ways White is entirely alien to today's culture, popular and lega


A Colorful Portrait Of A Man Named White   March 26, 1999
 2 out of 2 found this review helpful

Hutchinson has written a fascinating contemporary biography of Justice White who is almost unique in his continued insistence on his privacy and personal dignity. Although the author eschews speculation as to White's family or personal life, one still gets a good sense of the man--his intelligence, tenacity, and just plain decency. At least as interesting are the times he lived in, and few lawyers or judges have shared the action and passion of their times more fully than Justice White--first on the gridiron, then in the classroom, in the world of affairs, and on the court. White had his shortcomings as a communicator and legal theorist, as Hutchinson aptly illustrates with the oral and written record. But would that our society had more such self-effacing, dedicated and excellent lawyers and public servants!


This book did not include enough analysis.   January 8, 1999
 0 out of 1 found this review helpful

This book was a disappointment. I think that with the recent comprehensive late 20th Century biographies, such as the recent ones about Rockefeller and Lindbergh and Nigel Hamilton's Reckless Youth, we have come to expect the biographer to do a thorough investigation and analysis of the circumstances that impacted the subject. While I do not expect a Freudian approach in every case (and would probably object to it if done expressly), I welcome gentle suggestions that link early events in the subject's life with the later, more well known, events. This analysis was missing from Whizzer (with the exception of the origins of his hatred for the press). The book reads as if it is a collection of on-line newspapers searches, ones that I could have done myself if NEXIS had newspapers dating back to the 30s. Didn't anybody keep a diary? Didn't anybody write letters? Didn't anybody have any introspective thoughts? To those who say that this type of analysis is not necessary for a judicial biography, I direct them to John Jeffrey's book about Powell, which I thought was very well done, and a good model for what a judicial biography can be.