Justice White and the virtues of modesty.

• Author: Frederick, David C.
• Position: Byron R. White

Justice Byron R. White was one of the most talented persons I have ever had the privilege to know. A brilliant thinker, writer of uncommon economy, and storied athlete, White had the innate personal skills to accomplish pretty nearly anything he set his mind to. Yet, in the year I spent as his law clerk and the years thereafter until his death, the quality that impressed me the most was his modesty. He never boasted about what he had done or could do, and he never told stories with the implicit purpose of glorifying some aspect of his past. When my co-clerks and I would ask questions of great curiosity about some of the famous people he had known over the years, his responses would be respectful and occasionally surprising. But they invariably placed the other person at the center of the story and not himself. As a role model both personally and professionally, he served as a daily reminder that hard work, conscientious attention to duty, and genuine respect for others are values that produce their own rewards distinct from the more ephemeral psychic lift of praise and recognition.

I first glimpsed Justice White's distinctive modesty when we met in 1990. When he called to invite me for an interview to be his law clerk, I was clerking in San Francisco for Judge Joseph T. Sneed. The Justice invited me to travel to Washington within the next week, cautioning that it was no sure thing that I would get the job but saying he would understand if I thought the cost too great for the opportunity. Of course, any young lawyer would jump at that chance, expense be damned. After I had flown a total of 6,000 miles for an interview that lasted barely eighteen minutes, I can still remember the excitement I felt at his subsequent call a few weeks later offering me the clerkship, which he prefaced by saying, "I'm getting pretty old. You never know whether I'll make it or not, and you may want to take a job with a younger Justice." Perhaps because lightning seemed to strike with regularity in his own life, he was just unaware that I might not want to risk it striking more than once in mine. Nor after having met him would I have wanted it to.

By the time I began my clerkship, Justice White had sat on the Supreme Court for more than twenty-nine years, during which he had been served by over eighty-five law clerks. At first, the Justice kept to himself, with communications occurring mostly on paper or the occasional short conversation. As the Term progressed and we began to interact more often, I came to appreciate up close his mode of working. An early riser, he often arrived at the Court by 6:30 a.m. During the weeks leading up to arguments, he would devote himself each morning to a case to be argued on the merits and work it through until he had thoroughly prepared for the argument. He read the briefs and key cases, and wrote and typed his own notes and any questions he wanted to ask of the advocates. Only when he had satisfied himself that he was prepared on a merits case would he then turn to other work that day. Except for a few cases to be argued early in the Term, he did not require us to write bench memoranda, and for those cases we had a strong hunch that he imposed that duty only to ensure that we would stay busy enough during the summer when the Court's principal work was processing petitions for a writ of certiorari.

Although he never suggested to his law clerks how to do our jobs, his instructions were to prepare the cases on the merits on our own without much interaction or engagement with him. He genuinely valued our perspective, but wanted us to arrive at it independently without being influenced by his preliminary views. After argument, he invited us to write a short memorandum explaining how we thought the case should come out. These were very short--since the Court typically met in conference to vote on the outcome just a few days after the argument--so we had to get right to the point. If he strongly disagreed with our assessment, he invited us down for a "discussion" in which he asked questions that thoroughly canvassed the underlying premises of the parties' arguments. In one case, he spent over an hour closely interrogating me, first asking questions sympathetic to one side, then the other, all the while invoking precedents and key facts developed at trial that might bear on the proper outcome. More often than not, those discussions mined us around on the case. By the end of the first argument session, my co-clerks...