Customer Reviews

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

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Hutchinson has written a fascinating contemporary biography of Justice White who is almost unique in his continued insistence on his privacy and personal dignity. Although the author eschews speculation as to White's family or personal life, one still gets a good sense of the man--his intelligence, tenacity, and just plain decency. At least as interesting are the times he lived in, and few lawyers or judges have shared the action and passion of their times more fully than Justice White--first on the gridiron, then in the classroom, in the world of affairs, and on the court. White had his shortcomings as a communicator and legal theorist, as Hutchinson aptly illustrates with the oral and written record. But would that our society had more such self-effacing, dedicated and excellent lawyers and public servants!

Byron White intentionally did not leave much of a paper trail, as a man distrustful of the press, which is why this book has nowhere near the depth of Jeffries' Powell biography. White may well be most vilified and castigated justice in his own time, a fact which Hutchinson recounts in great detail, because he frequently ruled against the interests of the intelligensia-- frivolous First Amendment rights claimed by the media, and, of course, homosexuals, in Bowers, which won him the most profane attacks of all, from gay rights activists imbued with more passion than respect for the deliberative function of the Courts.

White, though he is accused of "moving right" over the course of his career, was in fact remarkably consistent. The problem was that he was guided by a considerably more complex set of principles than most justices, another fact which Hutchinson brings out quite well. He had an extremely uptight view of electoral politics, disliked formalism in all of its forms, was always against categorically forclosing judicial review, and absolutely despised substantive due process, especially Roe v. Wade. Yet White was an extraordinarily fair-minded and scrupled man. He was the only justice to object to the Court's attempt to retire the debilitated Justice William O. Douglas on its own accord, was an aritculate opponent of formalistic separation-of-powers and federalism doctrine, and frequently came out on the side of the downtrodden (see his role in Jacobson v. U.S.). History should view White more kindly than most of his contemporaries-- he was a man totally without an sort of a political agenda, the type of fair-minded and intelligent person so lacking from our Courts today.

There are some faults here: Hutchinson's forays into Constitutional commentary in the text are very opaque and inappropriate for the book. This book is generally well-written and well-researched, but its appeal will generally be to hardcore watchers of the Warren, Burger, and early Rehnquist courts or fans of White himself-- evidently a small group, as this book is now nearly out of print.

Since White was on the Supreme Court for over 30 years during a most important period in our history, this biography is full of interest for anyone who knows how important the Court is. But a large part of the book is devoted to White's very unusual life before he went on the Court, and even if you are uninterested in football you will find the account of his career absorbing, or at least I did. I remember as a child hearing of Whizzer White, even though my interest in football was derived only from reading the sports pages. This is as good a biography as I have read in a long time. And I don't give out five stors easily.

I first read this biography when it was published in 1998; because I am working with a former White clerk on a matter, I recently took another look--it has held up very well. The author, Dennis J. Hutchinson, long affiliated with the University of Chicago and its law school, had the advantage of having clerked for White. But this is no hagiography, and is quite critical in spots. Because White (1917-2002) has become all but invisible to current generations of Court watchers, and this is the major biography available on him, it is an important book. One measure of the author's thoroughness is that White does not make it onto the Court until page 335 (he served between 1962 and 1993)--the previous pages are devoted to a meticulous account of his prior life, and what a life it was: football All-American; Rhodes Scholar; graduate work at Oxford; then onto Yale Law School while playing in the NFL; valuable work during the war in Naval Intelligence; then clerking on the Court; followed up with a successful law practice and politics in Denver, including work on the JFK campaign in 1960; a stint as Deputy Attorney General under RFK and then appointment to the Court.

Hutchinson does not follow the frequent practice of reviewing every major decision a subject made while on the Court; rather the picks out three terms (1971, 1981, and 1991) for extended analysis. He looks at such topics as White's opinion style, including his dissent format; his incremental approach; the problems some had with White's opinion style; his interaction with fellow Justices; and his views on such topics as affirmative action, abortion and finding "new" constitutional rights. Always central to the discussion is White's independence, as manifested for example in being the only Justice against taking away (in effect) Justice Douglas's vote due to his incapacity. The author also speculates as to the forces that did and did not shape (such as Yale legal realism) White's view. White's reputation for being a difficult and distant individual to deal with certainly is borne out by the book, although White clerks will tell you he was great to work for. Whatever, White is a fading figure, and it falls largely to this fine biography to keep his memory and accomplishments alive.

This is the first full-scale book about the most interesting Supreme Court Justice of the 20th Century. This book, which I just received from Amazon, provides a wonderful picture of a man whose accomplishments, on and off the bench, are truly amazing. A must read for anyone interested in the law, politics, American history or the Supreme Court.

Generally the book is good, but I would have liked to see less excessive detail about the football days -- college and professional. Half the book is devoted to this, including vital statistics of key games. (But if your interested in the earliest days of professional football this is a must read.) The scope of White's responsibilities with the Kennedy Justice department focused nearly exclusively on civil rights -- wasn't there more to his role and contributions? The author used three Supreme Court terms (out of 30+) to explore and elucidate White's jurisprudence. I would have like to see 2/3 less sports and 2/3 more Supreme Court. In the end, White's tightly focused and methodical approach has a value that I hope more Justices and judges adopt. Although he wasn't poetic or espoused ground-shaking social changes, his substantive value to the American legal system is widely misunderstood and underestimated, as Hutchison clearly documents. Lastly, we learn how much White disapproved of his nickname. It's a shame that the primary title had to force the name again on this proud man.

This is a highly readable and very fascinating look at one of America's most least understood, and least remembered, Supreme Court justices. The book's descriptions of White's judicial career are just as interesting as the author's portrait of Oxford in the 1930s and Denver during the middle of the 20th Century.

Having read biographies of William Brennan and Harry Blackmun, Nathan Lewin's assessment of White -- written in 1984 -- really stands out for me during this work. Lewin wrote that White's career on the bench fulfilled the role ... that ... Brennan had served on the Warren Court -- as the guiding intellectual influence of the institution. With a steady hand and a belief that the other branches of government set social policy, White forged his own path and played a key role in American history.

Byron White began his long judicial career in dissent, resisting the rising tide of criminal procedure liberalism of the Warren Court, and ended it as the balance wheel of Rehnquist Court. In his 31 years on the Supreme Court, from 1962 to 1993, he was in the majority in 807 five-to-four decisions, more than any other justice in history, except for the wily William Brennan who served on the court for 34 years. White also has the signal distinction of being the only Democratic appointee to the Supreme Court since the end of World War II who profoundly disappointed his erstwhile partisan allies. Beyond the fact that White refused to "grow" his jurisprudence from its New Deal origins to accommodate the latest cultural avant-garde enthusiasms of the juridical left, little is known about White and his jurisprudence is widely misunderstood.

The litany of White's accomplishments and his early rise to the court serve to obscure the lines of his jurisprudence, which he never made an attempt to clarify. Hutchinson's principal accomplishment is to discern from the mass of White's opinions a sound jurisprudential framework obscured by bulk of White's output (1,275 opinions in 31 years), and in doing so refute the assertion that White was unpredictable.

Although White was popularly described as a conservative jurist, this confounds the term as it is used to describe a specific interpretive philosophy with the judicial tradition which White came to exemplify. Today judicial conservatism is virtually synonymous with "original meaning," the method of constitutional interpretation that holds that the Constitution means only what it was understood to mean by those whose assent made it law. This has certain implications, among them that the Congress's powers are limited to those enumerated, that the three branches of federal government and their powers are strictly separated, and that the states retain inviolable spheres of sovereignty. In this sense, White was not a conservative at all. Where, say, Justice Antonin Scalia would subscribe to these general notions, White would not. For instance, while Scalia believes that the law permitting the appointment of Independent Counsels violates the separation of powers doctrine (Morrison v. Olson), White sees it as a permissible experimentation with the form of government. And though Scalia believes that the powers of Congress are, however tangentially, limited (Lopez v. United States) and that the states retain areas of discretion where the Congress may not intrude (Printz v. United States), White views the powers of the Congress as essentially unlimited (Katzenbach v. McClung) and the states as retaining no sovereignty that the Congress is obliged to respect (Garcia v. San Antonio Metro. Transit Authority). Although Hutchinson views "New Deal liberal" and "pragmatist" as imperfect labels, his carefully wrought and insightful analysis of White's jurisprudence nonetheless establishes that they are fair and roughly approximate descriptions of Justice White.

In it's judicial aspect the New Deal generally sought to eliminate restrictions on the exercise of federal power. These breaks on government power were exemplified early in this century by an activist libertarian Supreme Court's invocation of natural rights and non-textual notions of substantive due process to strike economic regulation. Lochner v. New York, where the court struck down regulations on the working hours of bakers as a violation of their liberty to contract their labor, is perhaps the most famous bugbear of New Dealers. But restrictions also came in the form of the enumerated powers doctrine and in the form of early criminal procedure cases which, as Professor Akhil Reed Amar of Yale has noted, invoked natural law and private property rights, and thus restricted the government's policing powers. All of these, in one way or another, restricted federal action. Judges of New Deal era, then, had a distinctly negative ambition: To remove the restrictions on the exercise of federal power so that the Congress, acting with the Executive, could enact social reform.

The ambition of liberal judges changed, of course, with the rise of "the real Warren Court," which historian David P. Currie of the University of Chicago dates to the replacement of Justice Frankfurter by Arthur Goldberg late in 1962. "Willful judges," as Justice Scalia describes them, were no longer content with deferring to the overtly political branches, but were now eager to enact social reform themselves. The criminal procedure cases of the Warren Court were animated by the ideas that policing by the states was institutionally racist and that crime was a manifestation of disease, not evil, and should be addressed as a public health concern. Steeped in the New Deal idea of the judicial function, however, White largely dissented from Warren Court's innovations. He dissented from Miranda v Arizona, which mandated the now famous warnings to criminal suspects; prefiguring contemporary arguments, he wrote "there will not be a gain, but a loss, in human dignity" because under Miranda some criminals will be returned to the street to repeat their crimes.. White would also labor to limit the scope of rule excluding from trial illegally obtained evidence, and would dissent from Robinson v. California, where the court struck down a California statute criminalizing narcotics addiction. The court said that the state could not punish a person's "status" as an addict, only his conduct; White, sensibly enough, pointed out that addiction accrues through continuous willful behavior.

White was a pragmatist. He didn't believe that the provisions of the Bill of Rights had a "single meaning" or that constitutional provisions could be measured like the provisions of a deed, in "metes and bounds," but he was insistent that constitutional innovations be small and slow, and linked in a rational process. His father taught him that "You can't just stand on your rights all the time in a small town," and White had a lifetime aversion to "the angels of fashionable opinion," as Hutchinson memorably calls ideologues of various stripe. But White's contempt for philosophy could lead him astray. In Reitman v. Mulkey, White wrote the opinion of the court holding that California could not repeal a fair housing law because the repeal was motivated by animus toward minorities. In time, the case was precedent for the current Supreme Court's invalidation, in Romer v. Evans, of Colorado's attempt to deny homosexuals privileged legal status, and for a lower federal court to stay the implementation of California's Proposition 209, barring racial and sexual discrimination in state services. Pragmatism unguided by a philosophy lead White to judgments the long-term ill consequences of which he was not equipped to foresee.

However, White's small-step pragmatism and disdain for ideological enthusiasms kept him from joining most of the Warren and Burger Court's radical social agenda. Although he was willing to recognize, in Griswold v. Connecticut, a non-textual right to privacy permitting married couples access to contraception and even was willing to extend the right to non-married couples in Eisenstadt v. Baird, White famously and vigorously dissented from Roe v. Wade, privately telling people that he thought it was the only illegitimate decision the court made during his tenure. Perhaps just as upsetting to the votaries of judicial activism was White's majority opinion in Bowers v. Hardwick, which held that Georgia could constitutionally prohibit homosexual sodomy. White briskly dismissed the argument that homosexual activity was constitutionally protected: "[T]o claim that a right to engage in such conduct is `deeply rooted in this nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious."

In an sense, White was precisely the type of conservative -- one who slows progress, but does not reverse it; one who ratifies the past, whatever its content -- that liberals claim they want. Except for Roe, White would later vote to reaffirm precedent, on the basis of stare decisis, with which he had earlier disagreed. And yet, few modern justices -- except, perhaps, Justice Clarence Thomas -- have been the object of so much vitriol as White. When White retired in 1993, Jeffrey Rosen of the New Republic called White "a perfect cipher" and a "mediocrity," Bruce Ackerman of Yale said he was "out of his depth," and the New York Times' Tom Wicker called him the "bitterest legacy of the Kennedy Administration." The best Calvin Trillin, writing in The Nation, could say of White was "We count his loyalty to team a boon/The other side might well select a loon" -- this in backhanded praise that White retired during a Democratic administration. These facile slurs betray the mercurial enthusiasms of the age more than they carefully trace the lineaments of Justice White's jurisprudence and are therefore more reflective of their authors than White's jurisprudence.

In many ways White is entirely alien to today's culture, popular and lega

This book was a disappointment. I think that with the recent comprehensive late 20th Century biographies, such as the recent ones about Rockefeller and Lindbergh and Nigel Hamilton's Reckless Youth, we have come to expect the biographer to do a thorough investigation and analysis of the circumstances that impacted the subject. While I do not expect a Freudian approach in every case (and would probably object to it if done expressly), I welcome gentle suggestions that link early events in the subject's life with the later, more well known, events. This analysis was missing from Whizzer (with the exception of the origins of his hatred for the press). The book reads as if it is a collection of on-line newspapers searches, ones that I could have done myself if NEXIS had newspapers dating back to the 30s. Didn't anybody keep a diary? Didn't anybody write letters? Didn't anybody have any introspective thoughts? To those who say that this type of analysis is not necessary for a judicial biography, I direct them to John Jeffrey's book about Powell, which I thought was very well done, and a good model for what a judicial biography can be.