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'Byron Raymond White' (June 8, 1917 – April 15, 2002) won fame both as a football running back and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993.
He was born in Fort Collins, Colorado, and died in Denver at the age of 84 from complications of pneumonia.

Contents

Education

Football

Military service

Legal career

Supreme Court

Substantive due process doctrine

Death penalty

Abortion

Civil rights

Court operations and retirement

Quotations by White

Quotations about White

Honors

References

Education

White attended the University of Colorado, where he was a star football player and earned a degree in 1938. He won a Rhodes Scholarship to the University of Oxford (Hertford College). After World War II, he attended Yale Law School, graduating with honors in 1946. During his years at Yale Law, he served as Chairman of the Conservative Party of the Yale Political Union, preceded by Homer Daniels Babbidge and succeeded by Johnston Redmond Livingston. (For biographical information about White, see Hutchinson, ''The Man Who Once Was Whizzer White'')

Football

White was a star football player for the Colorado Buffaloes, where he acquired the nickname "Whizzer," which he later came to despise. After graduation he signed with the NFL's Pittsburgh Pirates (now Steelers), playing there during the 1938 season. He took 1939 off to study at Oxford as a Rhodes Scholar, but returned to play for the Detroit Lions from 1940-41. In three NFL seasons, he played in 33 games. He led the league in rushing yards in 1938 and 1940. His career was cut short when he entered the United States Navy during World War II; after the war, he elected to attend law school rather than returning to football. He was elected to the College Football Hall of Fame in 1954. (See Hutchinson, ''The Man Who Once Was Whizzer White'').

Military service

During World War II, White served as an intelligence officer in the U.S. Navy stationed in the Pacific Theatre. He wrote the intelligence report on the sinking of future President John F. Kennedy's PT-109. (See Hutchinson, ''The Man Who Once Was Whizzer White'')

Legal career

After serving as a law clerk to Chief Justice Fred Vinson, White returned to Denver.
White practiced in Denver for roughly fifteen years with the law firm now known as Davis Graham & Stubbs. This was a time in which the Denver business community flourished, and White rendered legal service to that flourishing community. White was for the most part a transactional attorney. He drafted contracts and advised insolvent companies, and he also argued the occasional case in court. (See Hutchinson).
During the United States presidential election, 1960, White put his football celebrity to use as chair of John F. Kennedy's campaign in Colorado. During the Kennedy administration, White served as United States Deputy Attorney General, the number two man in the Justice Department, under Robert F. Kennedy. Acquiring renown within the Kennedy Administration for his humble manner and sharp mind, he was appointed by Kennedy in 1962 to succeed Justice Charles Evans Whittaker, who retired for disability. White was the first former Supreme Court law clerk to return to the Court as a Justice.

Supreme Court

During his service on the high court, White wrote 994 opinions. 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. White often took a narrow, fact-specific view of cases before the Court and generally refused to make broad pronouncements on constitutional doctrine. In the tradition of the New Deal, White frequently supported a broad view of governmental powers (see ''New York v. United States'' 488 U.S. 1041 (1992) (White, J., concurring in part and dissenting in part)). He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 case of ''Miranda v. Arizona''; in his dissent in that case he noted that aggressive police practices enhance the individual rights of law-abiding citizens. His jurisprudence has sometimes been praised for adhering to the doctrine of judicial restraint. (See Dennis Hutchinson, "Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court," 74 U. Colo. L. Rev. 1409 (2003)).

Substantive due process doctrine

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 the Fifth Amendment and Fourteenth Amendment, White dissented in the controversial 1973 case of ''Roe v. Wade''. But White voted to strike down a state ban on contraceptives in the 1965 case of ''Griswold v. Connecticut'', although he did not join the majority opinion, which famously asserted a "right of privacy" on the basis of the "penumbras" of the Bill of Rights. White and Rehnquist were the only dissenters from the Court's decision in ''Roe'', though White's dissent used stronger language, suggesting that ''Roe'' 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 of ''stare decisis'', remained a critic of ''Roe'' throughout his term on the bench. (See ''Thornburg v. American Coll. of Obst. & Gyn.'' 476 U.S. 747 (1986) (White, J., dissenting))
White explained his general views on the validity of substantive due process at length in his dissent in ''Moore v. City of East Cleveland'':
: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 major judicial 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 1930's and 1940's, 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 Justice William J. Brennan in 1973's ''Frontiero v. Richardson'' that laws discriminating on the basis of sex should be subject to strict scrutiny. However, only four justices signed on to Brennan's opinion in ''Frontiero''; in later cases gender discrimination cases would be subjected to intermediate scrutiny (see ''Craig v. Boren'').
White wrote the majority opinion in ''Bowers v. Hardwick'' (1986), which upheld Georgia's anti-sodomy law against a substantive due process attack. White's opinion in ''Bowers'' was typical of White's fact-specific, deferential style of deciding cases: White's opinion treated the issue in that case as presenting only the question of whether homosexuals had a fundamental right to engage in sexual activity, even though the statute in ''Bowers'' potentially applied to heterosexual sodomy (see ''Bowers'', 478 U.S. 186, 188, n. 1). After White's retirement, ''Bowers'' was overruled by the 2003 decision in ''Lawrence v. Texas''.

Death penalty

White took a middle course on the issue of the death penalty: he was one of five justices who voted in ''Furman v. Georgia'' (1972) to strike down several state capital punishment statutes, voicing concern over the arbitrariness with which the death penalty was administered. The Furman decision ended capital punishment in the U.S. until 1977, when Gary Gilmore, who decided not to appeal his death sentence, was killed by firing squad. White, however, was not against the death penalty in all forms: he voted to uphold the death penalty statutes at issue in ''Gregg v. Georgia'' (1976), even the mandatory death penalty schemes struck down by the Court.
White accepted the position that the Eighth Amendment to the United States Constitution required that all punishments be "proportional" to the crime (see ''Harmelin v. Michigan'', 501 U.S. 957 (1991) (White, J., dissenting)); thus, he wrote the opinion in ''Coker v. Georgia'' (1977), which invalidated the death penalty for rape of a 16-year old married woman.
White however thought that imposing the death penalty on minors was constitutional, as he was one of the three dissenters in ''Thompson v. Oklahoma'', a case that declared that the death penalty as applied to offenders below 16 years old was unconstitutional.

Abortion

Byron White was a dissentor in the ''Roe vs. Wade'' decision castigating the majority for holding that "The Constitution of the United States values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."

Civil rights

White consistently supported the Court's post-Brown attempts to fully desegregate public schools, even through the controversial line of forced busing cases. (See ''Milliken v. Bradley'' (White, J., dissenting)). He voted to uphold affirmative action remedies to racial inequality in an education setting in the famous ''Regents of the University of California v. Bakke'' case of 1978. Though White voted to uphold federal affirmative action programs in cases such as ''Metro Broadcasting, Inc. v. FCC'', 497 U.S. 547 (1990) (later overruled by ''Adarand Constructors v. Peña'', 515 U.S. 200 (1995)), White voted to strike down an affirmative action plan regarding state contracts in ''Richmond v. J.A. Croson Co.'' (1989).
White dissented in ''Runyon v. McCrary'' (1976), which held that federal law prohibited private schools from discriminating on the basis of race. White argued that the legislative history of Title 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 the ''Civil 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. See Runyon, 427 U.S. 160, 212 (White, J., dissenting) ("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's ''Patterson v. McLean Credit Union'', which itself was overruled by the Civil Rights Act of 1991.

Court operations and retirement

White frequently urged that the Supreme Court should consider cases when federal appeals courts were in conflict on issues of federal law, believing that a primary role of the Supreme Court was to resolve such conflicts. Thus, White voted to grant certiorari more often than many of his colleagues, and he wrote numerous opinions dissenting from denials of certiorari. After White (along with fellow Justice Harry Blackmun, who also took a liberal line in voting to grant certiorari) retired, the number of cases heard each session of the Court declined steeply. See David M. O'Brien, The Rehnquist Court s Shrinking Plenary Docket, 81 Judicature 58-65 (Sept./Oct. 1997).
White disliked the politics of Supreme Court appointments. (See Hutchinson, ''Whizzer White''). He retired in 1993, during Bill Clinton's presidency; Clinton appointed Justice Ruth Bader Ginsburg to succeed him. After retiring from the Supreme Court, White occasionally sat with lower federal courts. He maintained chambers in the federal courthouse in Denver until shortly before his death. He also served for the Commission on Structural Alternatives for the Federal Courts of Appeals,^[1]
By the time of his death in 2002, White was the last living Warren Court Justice. From his death until the retirement of Sandra Day O'Connor, there were no living former Justices.

Quotations by White

★ "While the collateral consequences of drugs such as cocaine are indisputably severe, they are not unlike those which flow from the misuse of other, legal, substances." -- Justice Byron R. White, dissenting in ''Harmelin v. Michigan'' 501 U.S. 957 at 1023 (1991)

★ "As an exercise of raw judicial power, 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 that the Constitution extends to this Court." Justice Byron R. White dissenting from the decision of the US Supreme Court in ''Doe v. Bolton'', 410 U.S. 179 at 222 (1973) (Also applied to ''Roe v. Wade'' 410 U.S. 113).

Quotations about White

★ "I cannot think of a single answer that I made in the years that I argued before the Court while Justice White sat on it that seemed to satisfy him. While I won a number of cases that I argued before him, and he voted for my side in most of them, I never had the sense that anything I said pleased him. White, a former All-American running back (whose much-repeated college nickname, Whizzer, was one that appalled him), was no fan of press claims for broad First Amendment protection. He invariably asked questions that were both pointed and powerful." Floyd Abrams.^[2]

Honors

The NFL Players Association gives the Byron "Whizzer" White award to one NFL player each year for his charity work. Michael McCrary, who was involved in Runyon v. McCrary, grew up to be a professional football player and won the Byron "Whizzer" White award in 2001.
The federal courthouse in Denver that houses the Tenth Circuit is named after Justice White.
White was inducted into the Rocky Mountain Athletic Conference Hall of Fame on July 14, 2007.^[3]

References

1. Justice Byron R. White ''The Third Branch''
2. Floyd Abrams, ''Speaking Freely: Trials of the First Amendment'', published by Viking Press (2005), Page 71.
3. RMAC to honor 'Whizzer'