White, Byron R. (1917–) (Update 2)

• Author: Dennis J. Hutchinson
• Pages: 2892-2893

Page 2892

When Byron R. White retired from the Supreme Court in 1993, the vacancy he created received more attention than his legacy. For the first time since 1967 (with the appointment of THURGOOD MARSHALL), and only the second time since his own appointment in 1962, a President from the Democratic Party would have the power to nominate a member to the Court. The New York Times editorially dismissed White's career: acknowledging that he was "one of the more remarkable people to serve on the Court," the Times nonetheless found him to be "more a witness than a moving force." White indirectly demurred and was later quoted as saying, "I don't have a doctrinal legacy; I shouldn't"?implying, as he often said, that the role of Justices is to decide particular cases, not to build theoretical structures.

Notwithstanding his own modesty and the judgments of the press, White had a substantial impact on the work of the Court during his lengthy tenure. He played a major role in the development of FIRST AMENDMENT doctrine, especially in the areas of press shield laws, BRANZBURG V. HAYES (1972); LIBEL, HERBERT V. LANDO (1979); CHILD PORNOGRAPHY; and the PUBLIC FORUM doctrine. He wrote major opinions for the Court in LABOR, ANTITRUST, and FEDERAL JURISDICTION. He was one of the leading exponents, and protectors, of a broad reading of congressional power, particularly vis-à-vis claimed STATES ' RIGHTS. From AVERY V. MIDLAND COUNTY (1968) to ROGERS V. LODGE (1982), he was one of the Court's resident experts on VOTING RIGHTS law. He also played a central role in the development of doctrinal exceptions to the EXCLUSIONARY RULE.

White will probably be remembered not for his opinions for the Court but for a number of DISSENTING OPINIONS,

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in which he took the majority to task?often in fierce terms?for its reasoning and for the practical consequences of its decision. From MIRANDA V. ARIZONA (1966) to ROE V. WADE (1973) to GERTZ V. WELCH (1974) to IMMIGRATION AND NATURALIZATION SERVICE V. CHADHA (1983), White never hesitated to express his misgivings over the Court's craft or what he viewed as its audacity. "Judges have an exaggerated view of their role in our polity," he told a friend privately after a decade on the Court, and his sharply worded separate opinions drove home the point.

The credo manifested indelibly in two areas, SEPARATION OF POWERS and SUBSTANTIVE DUE PROCESS. His first major statement on separation of powers was...