The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White.

• Author: Bell, Bernard W.
• Position: Review

THE MAN WHO ONCE WAS WHIZZER WHITE: A PORTRAIT OF JUSTICE BYRON R. WHITE. By Dennis J. Hutchinson.([dagger]) New York: The Free Press. 1998. 577 pp. $30.00.

Reviewing a biography of retired Justice Byron White and commenting on the Justice's jurisprudence offers a daunting range of possibilities given White's varied life (star athlete, Yale and Rhodes scholar, private lawyer, and Justice Department official) and important tenure on the Supreme Court (thirty-one years during the Warren, Burger, and Rehnquist Courts). Professor Bernard Bell focuses on three areas. First, he discusses White's preoccupation with the countermajoritarian difficulty--judges' authority to overturn the decisions of democratically elected branches of government. White rarely abdicated judicial authority or responsibility, but he deferred to the other branches, not only when their actions threatened amorphous substantive constitutional rights, but also when their actions either implicated substantive rights more closely tied to the Constitution's text or the intent of the Constitution's Framers or raised separation of powers concerns. Second, Professor Bell highlights White's commitment to deciding individual cases rather than promoting any overarching judicial theories. Finally, Professor Bell explicates Justice White's approach to cases dealing with the press and race--important areas of Supreme Court jurisprudence over the last thirty-five years. White's media law cases emphasized one consistent principle, that the press should be treated no better and no worse than anyone else, while his decisions touching on race are more nuanced and varied According to Professor Bell, this reflects the influence of White's civil rights work in the Kennedy Justice Department.

Distinguished historian Dennis Hutchinson opens his biography of Justice Byron R. White by recounting an exchange between a waitress and White at a Washington restaurant shortly after he had joined the Kennedy Administration as deputy attorney general. White had long been renown as a college and professional athlete, and his recent high-level appointment had rekindled public interest in him. The waitress asked, "Say, aren't you Whizzer White?" His response: "I was."(1) (Thus, the title of Hutchinson's biography: The Man Who Once Was Whizzer White.) The interchange illustrates Hutchinson's theme of an extremely accomplished but reticent man who attempts to "escape" a past filled with achievements of which most of us Walter Mittys(2) can only dream. In an age in which people will do or reveal almost anything for even momentary fame (or notoriety(3)), such reticence seems quaint or perhaps even odd.

From the perspective of attempting to assess Justice White's significance as a jurist, I begin with two other stories. The first is one that Justice White loves to tell, but which Hutchinson does not include. The Justice was about to sit by designation on a federal court of appeals panel that included one of his former Supreme Court law clerks. The former clerk turned jurist supposedly offered a piece of friendly advice: You know, Mr. Justice, you have to know the law here (i.e., when you sit as a judge on the court of appeals). In recounting the story, Justice White leaves his view of this advice implicit--Justices must also know the law as members of the Supreme Court.(4) The second story appears in the Hutchinson book. After Justice White testified at his confirmation hearing (which lasted all of ninety minutes(5)), a journalist asked the nominee to define the constitutional role of the Supreme Court. One might expect a variety of eloquent pronouncements regarding the protection of citizens' liberties, the assurance of equal justice, or serving as a teacher instilling respect for the Constitution.(6) Justice White's answer was simple: "To decide cases."(7)

Justice White is a central figure in contemporary Supreme Court history, and ultimately President John F. Kennedy's legacy to the Court.(8) He enjoyed one of the longest tenures of any Supreme Court Justice (from 1962 to 1993) and during much of that time his vote was pivotal.(9) He participated in 807 cases that split the Court 5-4 (second only to Justice Brennan), and was in the majority in sixty-five percent of them.(10) He authored a number of landmark opinions for the Court, including United States v. Leon,(11) Gravel v. United States,(12) Washington v. Davis,(13) Bowers v. Hardwick,(14) Red Lion Broadcasting Co. v. FCC,(15) and Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co.,(16) as well as some perhaps even more noteworthy dissents.(17) Yet Justice White has not attracted much of a Hallelujah Chorus--he often dismayed "liberals," frustrated "conservatives," and confounded those in between.

After briefly describing Hutchinson's work, I will discuss three aspects of White's jurisprudence. In Part I, I will discuss White's effort to address the countermajoritarian difficulty: namely, the inconsistency between democracy and unelected judges' authority to overturn the decisions of democratically elected legislatures and chief executives. In many ways White was more dedicated to respecting legislative judgments than other Justices more associated with that philosophy, but unlike some other advocates of judicial restraint, he almost invariably refused to embrace complete abdication of judicial authority. In Part II, I will highlight Justice White's determined focus on resolving individual cases rather than engaging in broad theoretical debates. In Part III, I will look at White's approach in two critical substantive areas--First Amendment doctrine involving the press, and constitutional and statutory issues involving race. The comparison will suggest that White's views on the latter issues are more nuanced than his views on the former, and I will suggest that White's stint in the Kennedy Justice Department might account somewhat for his more nuanced racial jurisprudence.

Many have written articles discussing White and his jurisprudence,(18) but Hutchinson has produced the first full-length biography. Perhaps surprisingly, much of the book (331 of 457 pages, exclusive of appendixes, indexes, and the like) discusses White's pre-judicial career. Hutchinson provides an extended discussion of White's illustrious college football career(19) (including a discussion of the origin of the nickname "whizzer"(20)), his successful pursuit of a Rhodes scholarship,(21) and his indecision regarding whether to accept the scholarship or play professional football instead (he ultimately found a way to do both).(22) Hutchinson discusses White's professional football career(23) (including a detailed examination of the controversial claim, widely made during his playing days, that his teammates refused to block for him because of his "exorbitant" salary of $15,000 a year(24)), his sojourn at Oxford(25) (including his friendship with John F. Kennedy and his narrow escape from Nazi Germany just days before the outbreak of World War II(26)), and his World War II experiences as a naval officer in the Pacific theater(27) (including his work as the intelligence officer investigating the sinking of Kennedy's PT-109(28)). This account of White's pre-legal career makes for interesting reading, but Hutchinson attempts to draw few insights into Justice White's judicial philosophy from these experiences. Many readers will likely draw one insight from Hutchinson's narrative, that White developed a deep-seated hostility to the press that could explain his customary rejection of press arguments. Hutchinson himself notes Justice White's record of ruling against the press in numerous cases, and the press' consequent hostility to White as a jurist,(29) but does not attribute this to White's personal experiences with the media.

Hutchinson also discusses Justice White's first year at Yale Law School (the 1939-1940 school year),(30) deftly describing the upheavals in the legal landscape occurring at the time. In 1938, the Supreme Court decided Erie Railroad Co. v. Tompkins,(31) in which it overruled a venerable ninety-six-year-old precedent and held that the federal courts lacked constitutional authority to establish federal common law in diversity actions. Even more importantly, in the preceding year the Court had abruptly abandoned its "economic due process" doctrine,(32) the hallmark of the Lochner(33) era. White's focus on the countermajoritarian difficulty(34) (which provides the foundation for his most controversial opinions) surely reflects the lessons of the Lochner-era Court's excesses.(35) Hutchinson also discusses in some detail White's year-long clerkship with Chief Justice Fred M. Vinson,(36) noting that even at that point in his career White preferred narrow rulings and refused to let hypothetical dangers play a large role in his analysis.(37) He then describes White's private practice in Colorado(38) and his involvement in John F. Kennedy's successful campaign for the Presidency in 1960.(39)

Hutchinson spends more time reviewing White's role in the Kennedy Justice Department.(40) Much of White's efforts involved the civil rights revolution that was gaining momentum. In particular, White helped lead the federal response to the crisis arising out of the protest of the continued segregation in interstate transportation facilities throughout the South.(41) Exercising rights declared by the Supreme Court,(42) several black and white members of the Congress of Racial Equality, dubbed "Freedom Riders," resolved to travel through the South by bus and desegregate bus terminals and other interstate transportation facilities along the way. The effort met with violent resistance by state and local officials as well as by groups of private citizens. White, as deputy attorney general, led efforts to protect the Freedom Riders from the violent Southern reaction. His role included traveling to Alabama to direct the law...