Justice White's principled passion for consistency.

• Author: Sullivan, J. Thomas
• Position: Byron White

The death of Justice Byron White represents another step toward the end of an era that most of us in midlife as attorneys associate with the Presidency of John Kennedy and the Supreme Court of Chief Justice Earl Warren. (1) President Kennedy's appointment of Justice White to the Court hardly ensured a liberal bent in its rulings; indeed, Justice White clearly proved to be a conservative (2) and moderating influence in a number of areas. (3) Nevertheless, he demonstrated a strain of judicial independence and dedication to principle that encourages us, as lawyers, to believe that all presidential appointments to the High Court have the potential for faithful service to a vision of the Constitution that is not imbedded in extreme political ideology or blindness to the virtues of reasoned argument. (4)

Justice White's most interesting contribution to the work of the Court may well have been reflected in his concern that the Justices exercise their jurisdiction to ensure a uniform application of the law. As attorneys, our ability to serve the interests of our clients requires that we be able to accurately assess the current state of the law and identify trends that may have implications for those clients' peculiar concerns. This is best done when the law is stable, or at the least, progressing on a stable course in an identifiable direction. Uncertainty in doctrine, while undoubtedly of interest to academics and theoreticians, is an anathema to the practitioner whose sound counsel is dependent upon the stability that doctrinal certainty affords.

In case after case presented to the Court for review, Justice White's passion for resolution of conflict is apparent not only in his opinion writing, (5) but in his dissents from the denial of the writ of certiorari. There, recognizing the existence of significant conflict in the approach taken to important constitutional questions by differing lower courts, (6) he argued that the Court should exercise its jurisdiction to resolve or harmonize these divergent approaches. In dissenting from the denial of certiorari in Bailey v. Weinberger, (7) he argued:

It is a prime function of this Court's certiorari jurisdiction to resolve precisely the kind of conflict here presented. Perhaps the state of our docket will not permit us to resolve all disagreements between courts of appeals, or between federal and state courts, and perhaps we must tolerate the fact that in some instances enforcement of federal law in one area of the country differs from enforcement in another. Hopefully, these situations will be few and far between. (8) The value of these published dissents lies both in Justice White's unwavering commitment to resolution of conflict in constitutional doctrine, (9) but perhaps more significantly for the practitioner, in his identification of doctrinal variation warranting further development and litigation in the Court. (10)

For example, in Spierings v. Alaska, (11) the petitioner brought a still-unresolved issue of double jeopardy to the Court, questioning whether the Alaska courts had properly held that a jury deliberating on the greater offense could be precluded from considering the lesser-included offense unless it had unanimously agreed to acquit on the greater charge. (12) The defense had requested an instruction permitting the jury to reach the issue of the lesser-included offense in the event jurors were deadlocked on the greater charge. The trial court rejected the proposed instruction and was upheld by the Alaska Court of Appeals (13) and a majority of the Alaska Supreme Court. (14) But a dissent in the state supreme court (15) argued for the alternative instruction proposed by the defense, (16) raising the specter of conflicting approaches taken by other jurisdictions, including the Ninth Circuit Court of Appeals. (17)

Justice White perceived the significance of the conflicting approaches taken in the lower courts and dissented from the Court's denial of certiorari. For the criminal defense lawyer, his dissent provides an important observation on the potential constitutional nature of this question. If juries must reach unanimous conclusions of acquittal on greater offenses before considering the suitability of conviction on a lesser-included offense, then the pressures on a lone holdout to change her vote in order to ensure a verdict are substantial. Alternatively, the holdout or holdouts who force mistrial compromise the important right of the defendant to have the impaneled jury reach a verdict, even on a lesser charge, thus avoiding the prospect of another thai. Yet, as the Alaska appellate court noted, the freedom of the jury to compromise on the lesser without first acquitting on the charged offense necessarily means that the State will suffer some convictions on lesser offenses when mistrial might have eventually resulted in conviction on the charged offense. (18)

Justice White expressed no conclusion on the merits of the question presented in his dissent, although this is not always the practice of justices offering dissenting opinions from the denial of certiorari. (19) Rather, it is apparent that his position was not outcome driven, but reflected a preference for resolution of conflicts in interpretation and doctrine. Resolution promotes stability in the interpretation and application of constitutional doctrine, regardless of the ultimate decision reached by a majority of the Court.

Occasionally, Justice White expressed his ultimate opinion in his dissent from the denial of the writ. For example, in Blakley v. Florida, (20) he argued that the petition...