Constitution Daily

Smart conversation from the National Constitution Center

The mystery of Justice Byron White

May 3, 2012 by Lyle Denniston


Justice Byron R. White served on the Supreme Court for 31 years, but now, a decade after his death, he remains something of an enigma. A blunt, often irascible man, he turned out to be considerably more conservative than expected when appointed by President John F. Kennedy, and left a legacy that is in many ways more notable for his dissents than for his opinions for the Court. In significant ways, legal doctrine has passed him by.


Even the public release of his official papers last month by the Library of Congress may stimulate a new mystery. Just what, exactly, is in the collection, and what will it tell about Byron White’s influence behind the scenes for some of the Court’s most tumultuous decisions?


Although the Library announced that the collection includes “183,500 items in 858 boxes,” White’s biographer, University of Chicago law professor Dennis Hutchinson (a former White law clerk), said a few years ago that White had “destroyed all his working papers,” adding that “White’s donation [of his papers] will turn out to be very slender when opened to the public.”


Hutchinson also said that it was a basic part of White’s personality “to be modest in a belligerent fashion; he doesn’t believe in history or in journalism.”


When researchers dive into the White collection at the Library of Congress’s Manuscript Division, they will be able to detect whether White felt any obligation toward history, if not toward journalism, by what he saved, and by the internal exchanges he had with his colleagues.


The dry paper record, of course, will not recreate the public image of the man. He was an imposing figure on the bench–intellectually brilliant, large and muscular as befits a former pro football running back (“Whizzer” is what everybody called him, to his disgust), an ornery questioner of lawyers.


But what was his actual influence? His most famous dissents, no doubt, came in the case of Roe v. Wade in 1973, establishing a woman’s constitutional right to abortion, and in the case of Miranda v. Arizona in 1966, requiring police to warn suspects taken into custody of their legal rights before questioning could begin.  Since then, the Court has retreated only a bit from its commitment to the basic principle of Roe v. Wade, and it has turned the Miranda decision into an even stronger precedent by making it a binding constitutional mandate instead of simply a directive to lower courts through its supervisory powers.


Less well-known is White’s continuing (and continually losing) battle against the Court’s embrace of what lawyers and judges call “substantive due process.”  In layman’s terms, that phrase means that the government must respect the fundamental civil rights of all persons, even if a specific right is not mentioned directly in the Constitution–as, for example, the right to an abortion.  “Substantive due process”  was the source of many modern civil rights rulings by the Court, over White’s relentless objection–beginning with his very first dissent as a Justice, in Robinson v. California in 1962.  He complained bitterly of “judge-made constitutional law.”


Justice White’s most famous opinion for the Court–and it has since been explicitly overruled by the Supreme Court–came in the 1986 decision in Bowers v. Hardwick.  That ruling refused to recognize a constitutional right of privacy for homosexual conduct between consenting adults in private.  In 2003, a year after White’s death, the Court cast that ruling aside in Lawrence v. Texas, creating just such a constitutional right.


He had joined the Court eight years after the decision in Brown v. Board of Education, mandating an end to racial segregation in public schools.  White joined in almost all expansions of that decision, including providing support for affirmative action in college admissions, in the case of Regents of the University of California v. Bakke in 1978.


White’s vote, however, was not always available to support civil rights claims.  He dissented in a 1976 case, Runyon v. McCrary, declaring that federal law bars race discrimination in admissions to private schools.  He contended that the law involved only applied to officially required segregation.


If he did not destroy all the papers dealing with all of those high-profile cases, researchers will be able to reconstruct how other Justices reacted to White’s drafts, and his influence.  The papers, by the way, have just become publicly available–but only to serious researchers–because White had specified that the collection be kept private until ten years after his death.  He died on April 15, 2002.


To use the papers, located in the Library’s Manuscript Division Reading Room, scholars and other researchers simply need to get a reader registration card, available free from the Library in Washington.


Lyle Denniston is the National Constitution Center’s Adviser on   Constitutional Literacy. He has reported on the Supreme             Court for 54   years, currently covering it for   SCOTUSblog,  an     online   clearinghouse of   information   about the Supreme   Court’s     work.


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