Byron White | |||||||||||||||
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| Associate Justice of the Supreme Court of the United States | |||||||||||||||
| In office April 16, 1962 – June 28, 1993 | |||||||||||||||
| Nominated by | John F. Kennedy | ||||||||||||||
| Preceded by | Charles Evans Whittaker | ||||||||||||||
| Succeeded by | Ruth Bader Ginsburg | ||||||||||||||
| 6thUnited States Deputy Attorney General | |||||||||||||||
| In office January 20, 1961 – April 12, 1962 | |||||||||||||||
| President | John F. Kennedy | ||||||||||||||
| Preceded by | Lawrence Walsh | ||||||||||||||
| Succeeded by | Nicholas Katzenbach | ||||||||||||||
| Personal details | |||||||||||||||
| Born | Byron Raymond White (1917-06-08)June 8, 1917 Fort Collins, Colorado, U.S. | ||||||||||||||
| Died | April 15, 2002(2002-04-15) (aged 84) Denver, Colorado, U.S. | ||||||||||||||
| Resting place | Saint John's Cathedral | ||||||||||||||
| Political party | Democratic | ||||||||||||||
| Spouse | |||||||||||||||
| Children | 2 | ||||||||||||||
| Relatives | Clayton Sam White (brother) | ||||||||||||||
| Education | University of Colorado Boulder (BA) Hertford College, Oxford Yale University (LLB) | ||||||||||||||
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| Years of service | 1942–1945 | ||||||||||||||
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| No. 24, 44 | |||||||||||||||
| Position | Halfback | ||||||||||||||
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| Height | 6 ft 1 in (1.85 m) | ||||||||||||||
| Weight | 187 lb (85 kg) | ||||||||||||||
| Career information | |||||||||||||||
| High school | Wellington (Colorado) | ||||||||||||||
| College | Colorado (1935–1937) | ||||||||||||||
| NFL draft | 1938: 1st round, 4th overall pick | ||||||||||||||
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Byron White delivers the opinion of the Court inZacchini v. Scripps-Howard Broadcasting Company Recorded June 28, 1977 | |||||||||||||||
Byron Raymond "Whizzer"White (June 8, 1917 – April 15, 2002) was an American lawyer, jurist, and professionalfootball player who served as anassociate justice of the Supreme Court of the United States from 1962 until 1993. By his retirement, he was the Supreme Court's only sittingDemocrat and the last-living member of the progressiveWarren Court.
Born and raised in a small homestead inWellington, Colorado, White distinguished himself as astudent athlete who came from a background of poor farmhands to become a consensusAll-Americanhalfback for theColorado Buffaloes. After being the runner-up for theHeisman Trophy in 1937, he was selected in the1938 NFL draft by thePittsburgh Pirates for theNational Football League (NFL). He led the league in rushing yards during his rookie season. White graduated from theUniversity of Colorado Boulder as class valedictorian, attaining aRhodes Scholarship to study atOxford University. AfterWorld War II forced him to return to the United States, he matriculated atYale Law School, played for theDetroit Lions in the 1940 and 1941 seasons while still enrolled, and served as an officer for theUnited States Navy in thePacific Theatre.
White graduated from law school with honors in 1946 andclerked for Chief JusticeFred M. Vinson. He eschewed work for awhite-shoe firm and returned to Colorado in order to enter private practice inDenver as a transactional attorney. Minor work as the Colorado state chair ofJohn F. Kennedy's 1960 presidential campaign led to him being unexpectedly tapped in 1961 for a position asU.S. Deputy Attorney General. He was successfully nominated by Kennedy to the Supreme Court the next year, becoming the Court's first justice from Colorado.
White espoused a pragmatic and non-doctrinaire judicial approach which strengthened the powers of the federal government, advocated for thedesegregation of public schools, and upheld the use ofaffirmative action. Though expected to be a reliably liberal justice, he was by contrast a vociferous opponent ofsubstantive due process, penning dissents in bothMiranda v. Arizona andRoe v. Wade (and consistently supported overruling the latter decision). White wrote the majority opinion inBowers v. Hardwick (upholding the ability for states to restricthomosexual conduct) and dissented inRunyon v. McCrary (against the ability for the government to restrictracial discrimination in private schools) andPlanned Parenthood v. Casey. Due to his unwillingness to align with either the liberal or conservative blocs, White was largely oriented with theCourt's center.[1]
White was born inFort Collins, Colorado, on June 8, 1917. His father, A. Albert White, managed a local lumber company. His mother, Maude Elizabeth (Burger), was the daughter of German immigrants. He had one older brother,Clayton "Sam" Samuel White. Neither parent graduated high school, which was not unusual for farming communities at the time, but they instilled in their sons a heavy emphasis on education and took active roles in the local community.[2][3] White and his brother were raised in the nearby town ofWellington where they attended thelocal high school. As a young student, White worked odd jobs to support his family during the town's decline in the 1920s; these included roles in harvestingbeets, shoveling coal, and hard construction work among other forms of manual labor. In his junior year, he and his brother rented out land and spent long hours in the fields, during which time White adopted a nearly lifelong habit ofsmoking.[4]
Sam, four years White's senior, became an accomplished student and athlete that graduated asvaledictorian, earning a scholarship to study at theUniversity of Colorado, where he was later elected by the university to become aRhodes Scholar.[5] Whereas Sam was a gregarious and socially active child, White was described as a taciturn boy who "was very quiet, measuring every single word, showing no emotion, and revealing nothing."[6]
White excelled academically in high school, graduating in 1934 as the class valedictorian with the highest grades in the school's history. He studied diligently in order to attain a scholarship to attend college, later describing his philosophy in Wellington as "do your work and don't be late for dinner."[7] White followed his brother's footsteps in attending theUniversity of Colorado Boulder on the scholarship offered to all Colorado high school valedictorians, intending to go to medical school and major in chemistry.[8][9] Though he joined thePhi Gamma Delta fraternity on campus, he stuck to a strict routine of working and studying with little to no social life.[10] However, he would become a star athlete after playing as anAll-Americanhalfback for theColorado Buffaloes football team,[11] winning a series of victories to become among the most acclaimed players in the country.[12][13]
In 1935, Sam White was awarded a Rhodes Scholarship to study at Oxford University. After news of his brother's success became a local sensation, White saw his brother as an inspiration and felt pressured to achieve the scholarship himself.[14] He served as student body president his senior year, switched his major to the humanities, and graduatedPhi Beta Kappa and valedictorian from the University of Colorado in 1938 with aBachelor of Arts degree ineconomics.[15][11] In his last year, the Colorado Buffaloes went undefeated,[note 1][20] and White's status as a football star earned him the moniker "Whizzer White" by the student newspaper.[21] After months of study, White also attained the Rhodes Scholarship, deferring it for a year to play professional football before attendingHertford College.[note 2][27][28]
On January 3, 1939, White departed to England aboard theSSEuropa, arriving inSouthampton on January 9 harassed by reporters wishing to see a "Yank at Oxford."[29][30][31] Upon moving into Hertford College with the intent of studying law, he befriended the future mathematicianGeorge Piranian and was assigned withC. H. S. Fifoot as a tutor.[32] White spent his days at Oxford tirelessly studying from day until night, becoming "the only Rhodes scholar who ever worked fourteen hours a day on his studies."[33] During oneEaster vacation, he became acquainted withJoseph P. Kennedy and future U.S. presidentJohn F. Kennedy as their father,Joseph Kennedy, was theU.S. ambassador to London.[34] In the period of political upheaval just before the Second World War, Oxford students—Rhodes scholars especially—took an active role in international politics, with many American Rhodes scholars beckoningPresident Roosevelt to take action againstSpanish nationalists. White, however, remained closed in the affairs of politics, rarely speaking out and becoming estranged from other students; he prioritized his studies and physique above all else.[35]
Following the end of a term, White spent a summer vacation touring France and Germany, settling down inMunich in order to study the German language andRoman law. He unexpectedly reunited with John F. Kennedy, who was on his own tour of Europe withTorbert Macdonald, and on one occasion the three were heckled by a mob who recognized their Englishlicense plates. White left Germany to return to Oxford in late August 1939. The war made it impossible for American students to continue studying at Oxford,[36][37] and White chose to return to the U.S. in order to continue his legal education atYale Law School.[38][39]
Upon enrolling at Yale, White continued his previous routine of studying fourteen hours a day, taking breaks only to exercise in thegymnasium where he would frequent the basketball courts, often clashing against Yale halfbackClint Frank inpick-up games. Despite attempts by theNew York Giants and other NFL teams to get him to sign back into football, White publicly repudiated his football career, telling a local newspaper that "my football playing days are over. I'm started on a law career."[40]
At the time, Yale was home to a number oflegal realists who rebukedLochner andsubstantive due process, and were generally scholars with an expertise in legal fields outside ofconstitutional law.[41] Two of such realists—Myres S. McDougal andArthur Corbin—had a significant influence on White early in law school.[42] Future justicePotter Stewart, one year ahead of him at the university, remembered White as "a serious-minded, scholarly, and rather taciturn (except when he found himself engaged in lively colloquy with J. W. Moore in his class on Procedure), and extremely likable young man with steel-rimmed eyeglasses."[43]
White earned the highest grades in his first-year class and was subsequently awarded the Edgar M. Cullen Prize, an award given to the highest-achieving first-year student.[43] During the summer, he returned to Colorado and attended summer school at theUniversity of Colorado Law School, got anappendectomy, and became awaiter at his old fraternity.[44] White would turn down an offer to join the editorship of theYale Law Journal,[45] instead taking a leave of absence to promptly return to professional football as a member of theDetroit Lions.[46][47][48]
White came into the National Football League with the then-Pirates in the summer of 1938 as a widely-heralded college star.[49] The $15,800 contract he had signed made White the NFL's highest-paid player.[50][51] About his first game, one Pittsburgh journalist said he "looked better as an individual than the Pirates did as a team".[49] Despite leading the NFL in rushing yards in1938,[52] White did not appear for the1939 season.[53] He would reappear for theDetroit Lions in1940 and would again top the world of "postgraduate football" with a league-leading performance in rushing.[54]
White played a total of three NFL seasons — 33 games in all.[55] He led the league in rushing twice during that short interval, and was elected the NFL's first teamAll-Proright halfback in 1940.[56]

At the end of1941 Lions season, White returned to Yale to await a call to serve in theU.S. Navy after theAttack on Pearl Harbor. In May 1942, he was assigned tonaval intelligence and spent weeks training atDartmouth College and inNew York City.[57] His original intention was to join theMarine Corps, but was kept out due to beingcolorblind.[11]
In July 1943, White was stationed atNouméa, New Caledonia, tasked with protectingGuadalcanal andTulagi; he narrowly missed being assigned with John F. Kennedy, his former acquaintance who had also been stationed at Tulagi before being reassigned to theRussell Islands.[58] During World War II, White served as anintelligence officer in theNavy, and was stationed in thePacific Theatre.[59][60][61] He wrote the intelligence report on the sinking of future PresidentJohn F. Kennedy'sPT-109.[62] For his service, White was awarded twoBronze Star medals,[11] and was honorably discharged as alieutenant commander in 1945.[63]

After his military service, White returned toYale Law School, graduating in 1946 ranked first in his class with aBachelor of Laws degree,magna cum laude, and membership in theOrder of the Coif.[64] White served as alaw clerk to Chief JusticeFred M. Vinson of theU.S. Supreme Court from 1946 to 1947, then returned to Colorado and entered private practice inDenver with the law firm now known asDavis Graham & Stubbs. This was a time in which the Denver economy flourished, and White rendered legal service to the business community. White was for the most part a transactional attorney; he drafted contracts and advised insolvent companies, and he argued the occasional case in court.[65]
During the1960 presidential election, White used his status as a football star to aid him as chair of John F. Kennedy's campaign in Colorado. White had first met the candidate when White was a Rhodes scholar and Kennedy's father,Joseph Kennedy, was Ambassador to theCourt of St. James's.[11] During the Kennedy administration, White served asUnited States Deputy Attorney General, the number two man in theJustice Department, underRobert F. Kennedy. He took the lead in protecting theFreedom Riders in 1961, negotiating with Alabama GovernorJohn Malcolm Patterson.[11]
On April 3, 1962, President Kennedy nominated White to be anassociate justice of theSupreme Court, succeedingCharles Evans Whittaker.[66] The president said of White—a longtime friend of his—that "he has excelled at everything. And I know that he will excel on the highest court in the land."[11] White was confirmed on April 11, 1962, by avoice vote.[66] He took the judicial oath of office on April 16, 1962, and served until June 28, 1993.[67] His Supreme Court tenure was the fourth-longest of the 20th century.[11]
Upon the request of Vice President-ElectAl Gore, White administered the oath of office on January 20, 1993, to Gore. It was the only time White administered an oath of office to a vice president. During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court,[11] and his votes and opinions on the bench reflect an ideology that has been notoriously difficult for popular journalists and legal scholars alike to pin down. He was seen as a disappointment by some Kennedy supporters who wished he had joined the more liberal wing of the court in its opinions onMiranda v. Arizona andRoe v. Wade.[27]
White often took a narrow, fact-specific view of cases before the Court and generally refused to make broad pronouncements on constitutional doctrine or adhere to a specific judicial philosophy, preferring what he viewed as a practical approach to the law.[11][27] In the tradition of theNew Deal, White frequently supported a broad view and expansion of governmental powers.[11][68] He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 caseMiranda v. Arizona.[11] In that dissent, he said that aggressive police practices enhance the individual rights of law-abiding citizens. His jurisprudence has sometimes been praised for adhering to the doctrine ofjudicial restraint.[69]
Frequently a critic of the doctrine of "substantive due process", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of theFifth Amendment andFourteenth Amendment, White's first published opinion as a Supreme Court Justice was a joint dissent with Justice Clark inRobinson v. California (1962), foreshadowing his career-long distaste for the doctrine. InRobinson, he criticized the remainder of the Court's unprecedented expansion of the Eighth Amendment's prohibition of "cruel and unusual punishment" to strike down a California law providing for civil commitment of drug addicts. He argued that the Court was "imposing its own philosophical predilections" on the state in this exercise of judicial power, although its historic "allergy to substantive due process" would never permit it to strike down a state's economic regulatory law in such a manner.
In the same vein, he dissented in the controversial 1973 caseRoe v. Wade. White voted to strike down a state ban oncontraceptives in the 1965 case ofGriswold v. Connecticut, although he did not join the majority opinion, which famously asserted a "right of privacy" on the basis of the "penumbras" of theBill of Rights. White and JusticeWilliam Rehnquist were the only dissenters from the Court's decision inRoe, though White's dissent used stronger language, suggesting thatRoe was "an exercise in raw judicial power" and criticizing the decision for "interposing a constitutional barrier to state efforts to protect human life." White, who usually adhered firmly to the doctrine ofstare decisis, remained a critic ofRoe throughout his term on the bench and frequently voted to uphold laws restricting abortion, including inPlanned Parenthood v. Casey in 1992.[70]
White explained his general views on the validity of substantive due process at length in his dissent inMoore v. City of East Cleveland (1977):
The Judiciary, including this Court, is the 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 even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a majorjudicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930s and 1940s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority.
White parted company with Rehnquist in strongly supporting the Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with JusticeWilliam J. Brennan in 1973'sFrontiero v. Richardson that such laws should be subject to strict scrutiny. Only three justices joined Brennan's plurality opinion inFrontiero; latergender discrimination cases would be subjected to intermediate scrutiny (seeCraig v. Boren). InRostker v. Goldberg, White joined Brennan and Marshall in dissent arguing that male-onlySelective Service registration was unconstitutional.[71]
White wrote the majority opinion inBowers v. Hardwick (1986), which upheldGeorgia's anti-sodomy law against a substantive due process attack:[11]
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.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
White's opinion inBowers typified his fact-specific, deferential style, treating the issue in that case as presenting only the question of whether homosexuals had a fundamental right to privacy, even though the statute inBowers potentially applied to heterosexual sodomy.[72] Georgia, however, conceded during oral argument that the law would be inapplicable to married couples under the precedent set forth inGriswold v. Connecticut.[73] A year after White's death,Bowers was overruled inLawrence v. Texas (2003).

White took a middle course on the issue of the death penalty: he was one of five justices who voted inFurman v. Georgia (1972) to strike down several state capital punishment statutes, voicing concern over the arbitrary way in which the death penalty was administered. The Furman decision endedcapital punishment in the U.S. until the court's ruling inGregg v. Georgia (1976). In that case, White voted to uphold Georgia's new capital punishment law.
White accepted the position that theEighth Amendment to the United States Constitution required that all punishments be "proportional" to the crime;[74] thus, inCoker v. Georgia (1977), he wrote the opinion that invalidated the death penalty for rape of a 16-year-old married girl. His first reported Supreme Court decision was a dissent inRobinson v. California (1962), in which he criticized the Court for extending the reach of the Eighth Amendment. InRobinson the Court for the first time expanded the constitutional prohibition of "cruel and unusual punishments" from examining the nature of the punishment imposed and whether it was an uncommon punishment − as, for example, in the cases of flogging, branding, banishment, or electrocution − to deciding whether any punishment at all was appropriate for the defendant's conduct. White said: "If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress." Consistent with his view inRobinson, White thought that imposing the death penalty on minors was constitutional, and he was one of the three dissenters inThompson v. Oklahoma (1988), a decision that declared that the death penalty as applied to offenders below 16 years of age was unconstitutional as a cruel and unusual punishment.
Along with JusticeWilliam Rehnquist, White dissented inRoe v. Wade (the dissenting decision was in the companion case,Doe v. Bolton), castigating the majority for holding that the U.S. Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."[75]
White consistently supported the Court's post-Brown v. Board of Education attempts to fullydesegregate public schools, even through the controversial line of forced busing cases.[76] He voted to upholdaffirmative action remedies to racial inequality in an education setting in the famousRegents of the University of California v. Bakke case of 1978. Though White voted to uphold federal affirmative action programs in cases such asMetro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) (later overruled byAdarand Constructors v. Peña, 515 U.S. 200 (1995)), he voted to strike down an affirmative action plan regarding state contracts inRichmond v. J.A. Croson Co. (1989).
White dissented inRunyon v. McCrary (1976), which held that federal law prohibitedprivate schools from discriminating on the basis of race. He argued that the legislative history of 42 U.S.C. § 1981 (popularly known as the "Ku Klux Klan Act") indicated that the Act was not designed to prohibit private racial discrimination but only state-sponsored racial discrimination (as had been held in theCivil Rights Cases of 1883). White was concerned about the potential far-reaching impact of holding private racial discrimination illegal, which if taken to its logical conclusion might ban many varied forms of voluntary self-segregation, including social and advocacy groups that limited their membership to blacks:[77] "Whether such conduct should be condoned or not, whites and blacks will undoubtedly choose to form a variety of associational relationships pursuant to contracts which exclude members of the other race. Social clubs, black and white, and associations designed to further the interests of blacks or whites are but two examples".Runyon was essentially overruled by 1989'sPatterson v. McLean Credit Union, which itself was superseded by theCivil Rights Act of 1991.
White said he was most comfortable on Rehnquist's court. He once said ofEarl Warren, "I wasn't exactly in his circle."[11] On the Burger Court, the chief justice often assigned important criminal procedure and individual rights opinions to White because of his frequently conservative views on these questions.

White frequently urged the Supreme Court to considercases when federal appeals courts were in conflict on issues of federal law, believing that resolving such was a primary role of the Supreme Court. Thus, White voted to grantcertiorari more often than many of his colleagues; he also wrote numerous opinions dissenting from denials of certiorari. After White (along with fellow JusticeHarry Blackmun, who also often voted for liberal grants of certiorari) retired, the number of cases heard each session of the Court declined steeply.[78]
White disliked the politics of Supreme Court appointments,[79] but had great faith in representative democracy, responding to complaints about politicians and mediocrity in government with exhortations to "get more involved and help fix it."[80] He retired in 1993, duringBill Clinton's presidency, saying that "someone else should be permitted to have a like experience."[11] When he retired, White had been the only Democrat on the Court.[81] Clinton nominated (and the Senate approved) JusticeRuth Bader Ginsburg, a judge from theU.S. Court of Appeals for the D.C. Circuit and a formerColumbia University law professor, to succeed him.
After retiring from the Supreme Court, White occasionally sat with lower federal courts.[11] He maintained chambers in the federal courthouse in Denver until shortly before his death.[81] He also served for the Commission on Structural Alternatives for the Federal Courts of Appeals.[82]
White died ofpneumonia on April 15, 2002, at the age of 84.[83] He was the last living Justice to have served on theWarren Court,[81][84] and the last justice appointed by Kennedy;[85] he died the day before the fortieth anniversary of his swearing in as a Justice. From his death until the retirement ofSandra Day O'Connor in January 2006, there were no living former justices.[11]
His remains are interred at All Souls Walk atSt. John's Cathedral in Denver.[86]
Then-Chief Justice Rehnquist said White "came as close as anyone I have known to meritingMatthew Arnold's description ofSophocles: 'He saw life steadily and he saw it whole.' All of us who served with him will miss him."[87]
White first met his wife Marion Stearns (1921–2009), the daughter of the president of the University of Colorado, when she was in high school and he was a college football player.[88] During World War II, Marion served in theWAVES while her future husband was a Navy intelligence officer. They married in 1946 and had two children: a son named Charles Byron (Barney) and a daughter named Nancy.[11]
His older brother Clayton Samuel "Sam" White (1912–2004) was also a high school valedictorian and Rhodes Scholar. He later became aphysician and medical researcher, particularly on the effects of atomic bomb blasts.[9]
The NFL Players Association gives theByron "Whizzer" White NFL Man of the Year Award to one player each year for his charity work.Michael McCrary, who was involved inRunyon v. McCrary, grew up to be a professional football player and won the award in 2000.
| Of all the athletes I have known in my lifetime, I'd have to say Whizzer White came as close to anyone to giving 100 percent of himself when he was in competition.[89] |
| — Pittsburgh Pirates owner Art Rooney |
Thefederal courthouse in Denver that houses theTenth Circuit is named after White.
White was elected to theCollege Football Hall of Fame in 1952.[90]
White was made an honorary fellow ofHertford College, Oxford.[91]
White was posthumously awarded thePresidential Medal of Freedom in 2003 by PresidentGeorge W. Bush.[92]
White was inducted into theRocky Mountain Athletic Conference Hall of Fame on July 14, 2007,[93] in addition to being a member of the College Football Hall of Fame and the University of Colorado's Athletic Hall of Fame, where he is enshrined as "The Greatest Buff Ever".[94]
| Legal offices | ||
|---|---|---|
| Preceded by | United States Deputy Attorney General 1961–1962 | Succeeded by |
| Preceded by | Associate Justice of the Supreme Court of the United States 1962–1993 | Succeeded by |