The thumbnail sketch that has taken hold in commentary about Justice Byron White over the years goes something like this: Started as a Kennedy Democrat when appointed to the Supreme Court in 1962, moved to the right, ended as a crusty Rehnquistian conservative.
The 75-year-old White’s announcement on Friday that he would retire at the end of the current Court term provides an occasion for revisionism
Crusty he is, with a vengeance. This is a man of whom it was said, when he was the nation’s best college football player 56 years ago, that he was fast enough to run around defenders, but mean enough to prefer running through them instead and blasting them out of the way with his forearms. A lot of lawyers who have been bullied from the bench by White’s coldly penetrating questions would say he hasn’t changed much. So would a lot of former law clerks who have tasted White’s el-bows while going up for rebounds. ("The basketball court’s the only time I’ve ever really see him get close to people," says one.)
Nor has White’s ideology changed much, if at all. He never was the kind of liberal that the Kennedy name has come to stand for. (Nor was JFK, for that matter.) And he is not really a full-dress Rehn-quistian conservative now, except on a bunch of high-profile issues that have come to dominate headlines about the Court over the past two decades.
White’s jurisprudence has been characterized by the independence of a self-made, small-town Coloradan who grew up poor; the hard, hands-on work of a man who is at his desk at 7 a.m.; a dogged, unflashy consistency that bespeaks fundamental integrity; and the judicial self-restraint of a man who told the Senate Judiciary Committee during his 15-minute confirmation hearing in 1962: "I feel the major instrument for changing the laws in this country is the Congress of the United States."
He was one of the Warren Court’s more conservative members on criminal-justice issues, although a solid supporter of school desegregation and civil-rights enforcement. White dissented, for example, from the 1966 ruling in Miranda v. Arizona (requiring police to tell arrested suspects of their rights to remain silent and consult lawyers), and from many other decisions (including key First Amendment rulings)in which he thought the liberals were going too far.
More recently, White has dissented from some decisions in which he thought the -Rehnquist Court’s conservatives were going too far in the opposite direction. In Arizona v. Fulminante, two years ago this week, White joined the three most liberal justices in dissenting from the Court’s 5-4 decision to discard the settled rule that convictions obtained with the use of coerced confessions must automatically be reversed. White has provided the fifth vote to hold the conservative tide back in some other cases, like his majority opinion last year in Jacobson v. United States striking down, on grounds of illegal entrapment, the conviction of a Nebraska farmer whom government agents had repeatedly pressured to buy child pornography.
The best evidence for the theory that White has grown more conservative over time is probably the one-time civil-rights liberal’s 1987 vote, in Johnson v. Transportation Agency, to overrule a major affirmative action decision that he had joined when it came down in 1979, United Steelworkers v. Weber.
But in White’s view, he wasn’t being inconsistent. "My understanding of Weber.," he explained in his dissent from Justice William Brennan Jr.’s majority opinion in Johnson, "was, and is, that the employer’s plan did not violate Title VII [of the Civil Rights Act of 1964] because it was designed to remedy intentional and systemic exclusion of blacks by the employer and the unions from certain job categories. That is how I understood the phrase ‘traditionally segregated jobs’ we used in that case. The Court now interprets it to mean nothing more than a manifest imbalance between one identifiable group and another in an employer’s labor force. As so interpreted, that case, as well as today’s decision, as Justice Scalia so well demonstrates, is a perversion of Title VII."
White’s comments here and elsewhere strongly suggest that he thought affirmative-action preferences, originally advanced as a last-ditch remedy for cases of hard-core discrimination against blacks, had evolved into a dangerous engine of reverse discrimination and racial quotas.
But just when it seemed safe to pigeonhole White as a die-hard opponent of all affirmative action, along came Metro Broadcasting v. FCC, in 1990: White provided the fifth vote for Brennan’s majority opinion upholding the FCC’s congressionally ratified racial preferences for blacks and other groups-mostly millionaires, in this context-in the competition for certain broadcast licenses.
Had White flip-flopped? Not at all: Congressional affirmative-action preferences were in a different category. White has always taken a broad view of the legislative power, whether in civil-rights legislation, or in curbing the executive branch, or in broadcast regulation.
I suspect that White personally reacted with distaste to the preferences in Metro Broadcasting. But White the jurist was less quick than some to enshrine his tastes and distastes in his constitutional jurisprudence.
His positions on civil-rights issues have changed less than has the world around him. White was liberal when that meant being tough on Southern segregationists. But the liberal label is now applied almost exclusively to passionate devotees of the kinds of racial and gender preferences that were unheard of when White joined the Court.
It is, to be sure, generally accurate to lump White with the Court’s conservatives on the issues-abortion, homosexual rights, affirmative action, school prayer, government assistance to religion, and the like-that provoke the greatest ideological passion these days. His retirement thus provides President Bill Clinton with an opportunity to move the Court to the left.
White has always held that states have broad power to regulate or even ban abortion, and has repeatedly called for overruling Roe v. Wade. "As an exercise in raw judicial power," he said in his 1973 dissent in Roe, "the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review." And he wrote the 1986 5-4 decision in Bowers v. Hardwick upholding Georgia’s law against homosexual sodomy, and dismissing as "at best, facetious" the claim .that the 14th Amendment due-process clause, protected such activity. White’s personal crustiness is that of a man of enormous intelligence-a Rhodes Scholar who was at the top of his Yale Law School class and who arguably boasts as much sheer intellectual horsepower as anyone on. the Court-who seemingly cannot be bothered to spend much effort seeking to persuade others to his point of view.
His opinions have rarely been quotable or eloquent. "I. think," Justice Harry Blackmun said of White in an informal public talk in July 1988, "he writes sometimes in a manner that is hard to understand." Adds a former clerk: "Some people think it’s his impatience with the need to explain things. You have to remember, he’s three steps ahead of everybody else."
In an earlier talk, in 1986, Blackmun, who is given to rambling and often revealing sketches of his colleagues, said: "White always telegraphs his feelings [on the bench], and when counsel is arguing something that he doesn’t agree with he starts to grunt and mumble. . . . His arms come up like this. And the sleeves of the robe drape . . .so that he always reminds me, and I’ve told him this, of a huge crow about ready to take off when those arms go up. And he’s tough on counsel. I’ve had counsel tell me about the questions that Byron White asked are the most indecipherable they ever get."
When announcing opinions from the bench, White alone among the Justices never provides the tourists, lawyers, and journalists gathered in the Court’s chamber even a glimmer of the issues in the case or the rationale of the decision. "In Smith versus Jones, Docket Number 92-300, we reverse the decision of the United States Court of Appeals for the.9th Circuit." That’s all you’ll get out of Byron White. "When I asked him why he didn’t go along with the others," Linda Greenhouse of the New York Times recently wrote of White, "he grumbled that he considered ‘the little courtroom ceremony to be a waste of time.”
Another Blackmun observation: "There are two things to do with Byron White- not to do with him. One is to call him Whizzer. And the other is to say that he wants to be-suggest that he ought to be-commissioner of baseball.”
Hmmmm. Commissioner of baseball. There is a vacancy.