Path to the Supreme Court
On the morning of April 11, 1962, near the end of a confirmation hearing that had opened at half past ten and found time for a joke about the Detroit Lions, Senator Edward V. Long of Missouri asked the nominee whether he would 'care to comment just briefly on the role of the Supreme Court in our constitutional form of government, as you view it.' Byron White answered like a man reading a statute: 'Article III of the Constitution vests the judicial power of the United States in the Supreme Court and inferior courts established by Congress, and the judicial power is exercised by deciding cases.' The cases, he went on, 'are decided on the facts, the record and the law applicable in that particular case,' and 'legislative power is not vested in the Supreme Court. It is vested in the Congress.' The committee went into executive session at five past noon and the Senate confirmed him the same day. Forty years later, when the Bar of the Court met in his memory, its resolution remembered the answer as three words, 'To decide cases,' and the compression was faithful. He sat for thirty-one years and wrote 1,275 opinions, and the method never changed: he decided the case in front of him, on its record, and left the philosophy to others. It is why no camp could claim him, why the labels slid off, and why his record, read whole, is the record of a man who meant exactly what he told Senator Long.
Byron Raymond White was born on June 8, 1917, in Fort Collins, Colorado, and grew up in Wellington, a sugar-beet town near the Wyoming line where his father managed a lumber business and served a turn as mayor. The Court's memorial would put the childhood in one sentence: he and his older brother Sam 'worked beet fields after school and during the summer from the time they could wield a hoe.' Sam went to the University of Colorado, won a Rhodes Scholarship, and set the family pattern; Byron followed him to Boulder in 1934 and, in a freshman game that autumn, ran well enough that a Denver Post sportswriter named Leonard Cahn called him 'a real whizzer' and printed it the next day. By his biographer's account the seventeen-year-old thereby acquired 'an identification he did not seek, did not like and could not shake.' The record that made the name stick came in 1937, when the university credits him with leading the nation in rushing and he was named Colorado's first All-American in any sport, finishing second in the Heisman voting; the memorial resolution calls his senior season 'statistically one of the most impressive in the history of intercollegiate football, capped by All-America honors and brilliant play in the second Cotton Bowl,' a game Rice won. He played basketball and baseball as well, and in 1938 graduated first in his class.
He had won a Rhodes Scholarship of his own, and he deferred it. The memorial's phrase is that he 'delayed his matriculation at Oxford to accept the highest salary ever offered to a player in the National Football League,' and in the autumn of 1938, for the Pittsburgh Pirates, he led the league in rushing as a rookie. He sailed for Oxford in January 1939. The American ambassador that year was Joseph P. Kennedy, and White later told the Kennedy Library how the acquaintance began: 'I was in school in England at Oxford University when his father was the ambassador and some of us used to be invited down to the embassy and I met the Kennedy family first at that time.' That summer, he said, 'I encountered him in Munich,' the ambassador's second son, in the last summer before the war. When it came he went home to Yale Law School, took leave to play two more seasons for the Detroit Lions, led the league in rushing again in 1940, and then put football down for good. Yale, he said, was 'the most stimulating intellectual experience I had had up to that time.' The Navy interrupted it: he served as an intelligence officer in the Pacific from 1942 to 1945 and won the Bronze Star, and among the documents in the Navy's file on the loss of PT-109 is an intelligence memorandum compiled from the survivors and signed by the flotilla's two intelligence officers, the first of them Lieutenant (jg) B. R. White; the boat had been commanded by the young man he met in Munich. He finished at Yale in 1946, first in his class, married Marion Stearns, the daughter of the University of Colorado's president, and spent the 1946 term as law clerk to Chief Justice Fred Vinson (§85). No justice before him had been a law clerk at the Court; the Chief Justice wrote on the photograph he gave his clerk that the future would be as brilliant as the past.
Then he went home. From 1947 to 1961 he practiced in Denver with the firm that became Davis, Graham & Stubbs, in what the memorial resolution calls 'a widely varied practice ranging from real estate, corporate work, antitrust, and labor law to tax and litigation'; a colleague there remembered him as 'the hardest working lawyer in the firm.' He and Marion raised a son and a daughter, Charles and Nancy. In 1959 the acquaintance from Munich, now the junior senator from Massachusetts, sent his staff to ask White to run the Colorado campaign, and White's own account of the decision is characteristically short: 'I enlisted in his army.' After the convention he ran the national Citizens for Kennedy, an organization whose purpose, he said, 'was not to challenge or compete with the Democratic party but to interest people that the regular party perhaps might not reach,' and which 'the Democratic party in most places thought' was 'an abomination, sort of a useless appendage.' The new President made him Deputy Attorney General, second to Robert Kennedy, in January 1961. His public moment there came in May, when the Freedom Riders were beaten in Alabama and, in the resolution's words, he 'organized and directed an ad hoc contingent of heroic federal officers to protect Dr. Martin Luther King and his supporters who faced life-threatening hostility to their protests against racial segregation.' Ruth Bader Ginsburg (§107) put a number on it: 'he personally supervised the 400 federal marshals and deputies sent to Alabama in May 1961.' On the night of May 21, with King and more than a thousand people inside the First Baptist Church in Montgomery and a mob outside it, those deputies held the church's perimeter until the governor called out the National Guard.
Charles Whittaker (§91), his health broken, retired effective April 1, 1962, and the President had his first vacancy. Nicholas Katzenbach, then at the Justice Department, recalled Robert Kennedy's summary of the alternatives: 'the problem with the other names was that, whatever his distinction, none was really close to the President.' Kennedy announced the choice on March 30, two days before the seat fell empty: 'I have known Mr. White for over twenty years. His character, experience and intellectual force qualify him superbly for service on the nation's highest tribunal.' The nomination went up on April 3; the hearing and the confirmation came on April 11; the commission is dated April 12, and he took the oaths on April 16, 1962, at forty-four, one of the youngest appointees in the Court's history. His own reaction, as Ginsburg later told it, was that the President was 'putting him out to pasture mighty early.'
On the Supreme Court
The pasture was the Warren Court, and he began by dissenting from it. In Robinson v. California (1962), his first term, the Court held that a state could not make narcotics addiction itself a crime; White thought the conviction rested on use, not status, and was 'not at all ready to place the use of narcotics beyond the reach of the States' criminal laws.' He joined Earl Warren (§88) in Reynolds v. Sims (1964) without a separate word, and then in Miranda v. Arizona (1966), joined by John Marshall Harlan II (§89) and Potter Stewart (§92), he wrote the dissent the decision's critics still quote: 'In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity.' The deeper objection was to the method. What the decision made obvious, he wrote, was 'that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources.' The same suspicion of judge-made law governed his press cases, in which the press seldom won. In Red Lion Broadcasting v. FCC (1969) he upheld the fairness doctrine because 'it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.' In the Pentagon Papers case (1971) he voted with the majority 'but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system.' In Branzburg v. Hayes (1972) he denied reporters a privilege to keep their sources from a grand jury: 'we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.' Sixteen years later, in Hazelwood School District v. Kuhlmeier (1988), he added the student press: 'Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.'
The dissent that followed him longest was filed in Doe v. Bolton, the companion to Roe v. Wade (1973), and covered both. 'I find nothing in the language or history of the Constitution to support the Court's judgment,' he wrote. 'The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.' Then the sentence that became the standing critique of the decision: '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.' Harry Blackmun (§98) had written the opinion; the two men served together for twenty-three years. On the death penalty he was neither abolitionist nor enthusiast. In Furman v. Georgia (1972) his concurrence rested on the finding that 'the death penalty is exacted with great infrequency even for the most atrocious crimes, and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not'; in Gregg v. Georgia (1976) he voted to uphold the statutes rewritten to answer Furman; in Coker v. Georgia (1977) his plurality held that 'a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.' His most durable opinion for the Court was Washington v. Davis (1976), which fixed the intent requirement into equal protection: 'our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.' In INS v. Chadha (1983) he dissented alone on the merits when the Court struck down the legislative veto, warning that the decision 'sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a "legislative veto"' and that the device's 'importance to Congress can hardly be overstated.'
And then there was Bowers v. Hardwick (1986). 'The issue presented,' he wrote for a five-justice majority, 'is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,' and his answer was that the claim that such a right was 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' was 'at best, facetious.' The sentence that carried the opinion's theory was about the Court itself: '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.' It was the Miranda dissent and the Roe dissent stated as a rule, and this time it was the law. On June 26, 2003, fourteen months after his death, Anthony Kennedy (§104) wrote for the Court in Lawrence v. Texas that 'Bowers was not correct when it was decided, and it is not correct today.'
The Supreme Court Database confirms what the opinions suggest, that the axis the site measures was not the axis he voted on. Across 4,853 coded votes his liberal share was 48.8 percent against a docket baseline of 54.0, a gap of five points that the site ranks fourteenth of thirty-three justices on the modern scale and puts him sixteenth of thirty-three on liberal share alone, the exact middle. The interesting numbers are underneath. In criminal procedure he was fifteen points below the docket, in privacy twenty-two below, in First Amendment cases more than sixteen below; in union cases he was nearly seven points above it, in federalism seven above, in federal taxation seventeen above. His closest colleague across divided cases was Anthony Kennedy, at 71.5 percent agreement over 425 of them; his furthest was William O. Douglas (§79), at 43.8 percent over 1,257. He dissented in 12.2 percent of cases against colleagues who dissented at 19.1 on the same ones, which is the arithmetic of a justice who was usually in the majority. The drift series answers the question this program has asked of every subject, who moved, with its cleanest entry so far: between his first five terms and his last five his liberal share fell 19.1 points, and the bench around him fell 16.4, both real, and the difference between them, a drift of 2.7 points against the Court, is not distinguishable from zero and ranks twenty-fourth of twenty-seven. He moved with the Court, almost exactly, in the direction the Court moved. Whether that means the Court came to him or he went with it, the record does not say.
On March 19, 1993, a former clerk carried a letter to the White House. 'It has been an interesting and exciting experience to serve on the Court,' it read. 'But after 31 years, Marion and I think that someone else should be permitted to have a like experience.' The memorial resolution notes that 'he was in many respects at the height of his powers and enjoying good health' and 'could have continued to serve for several more years.' President Clinton called him 'a living example of the American dream fulfilled,' and in June named Ruth Bader Ginsburg to the seat. She took it on August 10, 1993, and remembered two things: that 'upon my appointment, Justice White gave me the manual he used to guide work in chambers,' and that a senator at her hearing had asked how she might be like or unlike him. 'The differences are obvious,' she had answered; 'he is very tall and I am rather small, and I surely do not have his athletic prowess.' But 'I hope I am like him in dedication to the job and readiness to work hard at it.' He went home to Denver, where Congress renamed the federal courthouse for him in 1994, sat by designation on the courts of appeals, and in 1997 and 1998 chaired the Commission on Structural Alternatives for the Federal Courts of Appeals, whose report proposed dividing the Ninth Circuit into divisions. He gave his papers to the Library of Congress with instructions that they stay closed for ten years after his death. Dennis Hutchinson, his former clerk, asked to interview him for the biography and was refused, though not obstructed; Hutchinson's summary of the man was that he preferred 'to be modest in a belligerent fashion' and did not 'believe in history or in journalism.'
He died in Denver on April 15, 2002, of complications of pneumonia, at eighty-four, survived by Marion, Charles, and Nancy, and was interred at St. John's Cathedral there. Ron Klain, the clerk who had carried the letter, said the obvious thing about the résumé: 'we are never again going to see a Supreme Court justice who was first in his class at Yale Law School and led the NFL in rushing.' When the Court sat in his memory that November, William Rehnquist (§100), who had served beside him for twenty-one years, noted that he was 'the 93rd Justice to serve on this Court and the first to have served as a Supreme Court law clerk,' and closed with a line from Matthew Arnold: 'He came as close as any of us to meriting Matthew Arnold's encomium: he "saw life steadily and he saw it whole."' The other line worth keeping is one Hutchinson preserved. A waitress in Washington asked, 'Aren't you "Whizzer" White?' The answer came back in two words, 'I was,' and it was the whole of his position on the subject. The football had been a job, and he had done it as well as anyone; the law was a job, and he did it the same way, for thirty-one years, one case at a time.
The Voting Record
How White voted in the 4,853 cases the Supreme Court Database records from the 1961 term through the 1992 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career White voted with Kennedy more than with anyone else — the same side of the judgment in 71.5% of their 425 divided cases — and with Douglas least, at 43.8%. See the matrices →Compared against the 17 colleagues White shared at least 300 divided cases with.
And White ended 2.7 points more conservative relative to those colleagues than at the start — the 24th-largest shift of the 27 justices with a long enough record to measure. See who changed →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Washington v. Davis
1976Holding · A law is not unconstitutional under the Equal Protection Clause merely because it has a racially disproportionate impact; proof of discriminatory purpose is required.
Role · White wrote for the Court.
One of the most consequential doctrines in equal-protection law, sharply limiting constitutional challenges to facially neutral policies.
Read the opinion →Bowers v. Hardwick
1986 · 5–4Holding · The Constitution confers no fundamental right to engage in homosexual sodomy.
Role · White wrote for the Court.
A defeat for gay rights overruled seventeen years later in Lawrence v. Texas (2003, Kennedy §104).
Read the opinion →Roe v. Wade
1973Holding · (Dissenting) The recognition of a constitutional right to abortion is 'an exercise of raw judicial power' with no basis in the Constitution's text or history.
Role · White dissented from Blackmun's (§98) majority.
An early and influential statement of the critique of Roe that animated its opponents for half a century.
Read the opinion →Go Deeper
Byron Raymond White is the athlete-scholar who confounded the labels — 'Whizzer' White, an All-American halfback and NFL rushing champion, a Rhodes Scholar, a war-hero naval officer, John F. Kennedy's deputy attorney general, and, from 1962, a justice for thirty-one years. Appointed by a liberal Democrat and expected to vote that way, he became one of the Court's least classifiable members: a strong voice for civil rights and the government's power to regulate the economy, but a sharp dissenter in Miranda and Roe v. Wade and the author of Bowers v. Hardwick, upholding laws against homosexual conduct. He wrote Washington v. Davis, establishing that proof of discriminatory intent, not just disparate impact, is required for an equal-protection violation — one of the most consequential doctrines in modern constitutional law. Dennis Hutchinson's The Man Who Once Was Whizzer White is the biography. Start there, read Washington v. Davis and Bowers, and reckon with a justice no camp could claim.
The Bookshelf
The standard biography, by a legal scholar who clerked for White and knew him for decades. Hutchinson gives the whole astonishing life — the Colorado boyhood, the football stardom, Oxford, the wartime navy, the Kennedy Justice Department, and the thirty-one years on the Court — and is shrewd about the enigma at its center: a man of fierce privacy and few theories who resisted every ideological box. Respectful but not worshipful, it is the essential account of a justice who remains hard to place. Free Press.
White's most consequential opinion, and one of the pivotal doctrines of modern equal-protection law. Upholding a police-department hiring test that Black applicants failed at higher rates, he held for the Court that a law is not unconstitutional merely because it has a racially disproportionate impact — the challenger must prove discriminatory purpose. The intent requirement of Washington v. Davis sharply limited the reach of the Equal Protection Clause against structural inequality, and it remains, decades later, the central obstacle in constitutional race-discrimination cases. Essential and free online.
White's most notorious opinion, and a marker of how far and fast the law would move. Upholding Georgia's criminal sodomy statute, he held that the Constitution confers no fundamental right to engage in homosexual conduct, dismissing the contrary claim as 'at best, facetious.' Bitterly dissented from at the time, Bowers was squarely overruled seventeen years later in Lawrence v. Texas (2003), which called it wrong the day it was decided. Read it as the high-water mark of the Court's resistance to gay rights — and as a lesson in how a settled holding can be repudiated within a generation. Free online.
The reliable short account — the football fame, the Rhodes scholarship, the Kennedy Justice Department, and the long, unclassifiable tenure — in a few well-sourced pages with a portrait. Good on the paradox of the liberal appointee who dissented in Miranda and Roe yet championed civil rights and federal power. The best compact, citable life to set beside Hutchinson. CQ Press for the SCHS.
The standard jurisprudential assessment, by White's own former clerk, published while the justice still sat — the case that White's resistance to both ideological camps was itself a coherent judicial philosophy. Free full text at Yale's repository.
Hutchinson's scholarly distillation of the argument his biography on this shelf makes at length — White as the last Kennedy man, a New Frontier pragmatist stranded on an increasingly ideological Court.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The November 18, 2002 memorial: the Bar's resolution (the beet fields 'from the time they could wield a hoe,' the Cotton Bowl, the Freedom Rides, 'To decide cases'), Solicitor General Olson and Attorney General Ashcroft, and Chief Justice Rehnquist's response, which calls him 'the 93rd Justice to serve on this Court and the first to have served as a Supreme Court law clerk.' Free at govinfo.
The article that became the book: the nickname's origin in a Denver Post sportswriter's line about a freshman game in 1934, 'an identification he did not seek, did not like and could not shake,' and the waitress who asked 'Aren't you "Whizzer" White?' and was told 'I was.' Written for his retirement, five years before the biography. Free at Chicago Unbound.
The sitting justice, six months after Dallas, talking to Joseph F. Dolan for the Kennedy Library: the Oxford year and the embassy ('I met the Kennedy family first at that time'), Munich in the summer of 1939, the 1960 campaign ('I enlisted in his army'), and the Citizens organization the party thought 'an abomination.' Transcript free at the Library.
His successor's tribute, from the Colorado symposium: the 400 marshals in Alabama, 'putting him out to pasture mighty early,' the retirement letter ('Marion and I think that someone else should be permitted to have a like experience'), the chambers manual he handed her, the count of 1,275 opinions, and her answer to the Senate on how she might be like him. Free at the Law Review.
The Denver years, 1947-1960, from inside the firm that became Davis, Graham & Stubbs: the clients, the cases, and 'the hardest working lawyer in the firm.' The one account of the thirteen years between the Vinson clerkship and the Kennedy campaign. Free at the Colorado repository.
How the seat was filled in the spring of 1962, by the man who was in the Justice Department when it happened: Whittaker's retirement, the other names, and Robert Kennedy's objection that, whatever their distinction, none was really close to the President. The participant's account of the appointment. Free at the Colorado repository.
The whole hearing, 10:30 to 12:05 on April 11, 1962, with the Senate confirming him the same day: two Colorado senators, a congressman, the ABA's Bernard Segal, and the nominee, who told Senator Long that 'the judicial power is exercised by deciding cases.' The primary text behind the memorial's 'To decide cases.' Free at govinfo.
Five tributes in the March 2003 issue: Kennedy's 'The Unforgettable Byron White' (973), Collins's 'Western Justice' (975), Burke Marshall's 'Byron White, Lawyer' (987), Kate Stith's 'Justice White and the Law' (993), and NFL Commissioner Paul Tagliabue's 'A Tribute to Byron White' (999). The senator's is the one with the Denver airport and the law office. The Journal hosts each as its own PDF; the link is Kennedy's.
The Navy's own file on the sinking of Kennedy's boat, reproduced by the Naval History and Heritage Command: the action reports and, as an enclosure, the intelligence memorandum compiled from the survivors and signed by the flotilla's two intelligence officers, the first of them Lieutenant (jg) B. R. White. The document behind the often-repeated claim. Free.
The Reading Path
A researched route through the literature — in order.
- 1.Hutchinson, The Man Who Once Was Whizzer White — for the athlete-scholar and the enigma on the bench
- 2.Washington v. Davis — for the discriminatory-intent rule, his most lasting doctrine
- 3.Bowers v. Hardwick — for the opinion the Court would repudiate in a generation
- 4.The SCHS Illustrated Biographies — for the capsule life and the paradoxes
Where the Papers Are Kept
The Byron R. White papers at the Library of Congress document the Justice Department and Court years, though White — intensely private — kept and left less of the internal record than some colleagues. The principal collection for a justice who guarded his inner life closely. Visit →
Online Resources
Ideas for Further Research
- The justice no camp could claim. White voted for civil rights and federal regulatory power but against Miranda, Roe, and gay rights — defying the liberal-conservative axis that sorts the modern Court. Reconstruct the coherence, if any, beneath his votes, and ask whether his resistance to ideology was a principled judicial modesty or simply an idiosyncrasy that the polarized Court can no longer produce.
- Intent and the limits of equality. Washington v. Davis holds that the Constitution reaches only purposeful discrimination, not policies that merely burden minorities disproportionately. Trace how the intent requirement has shaped — and constrained — race, voting, and criminal-justice litigation for half a century, and weigh White's rule against the disparate-impact approach it rejected.
- Bowers to Lawrence. White's Bowers opinion was overruled within seventeen years by a Court that said it had been wrong from the start. Use the arc from 1986 to 2003 to study how constitutional law changes — through shifting personnel, social transformation, and the accumulating force of dissent — and ask what it means for the authority of law that a solemn holding can be so completely undone so quickly. Seat lineage: Whittaker §91 → Byron White → Ruth Bader Ginsburg §107.