The judiciary would enjoy a better reputation today if more judges emulated his restraint.
In a nomination hearing that otherwise proceeded as expected, Judge Neil Gorsuch may have surprised Supreme Court watchers by calling Justice Byron White, a fellow Coloradan for whom he had clerked, his “childhood hero” and “one of the greats.” Noting White’s modesty, Gorsuch poignantly recalled his observation that “the truth is we’ll all be forgotten soon enough, me included.” His words would prove too true too soon.
White died on April 15, 2002. His 31 years on the Court, the fourth-longest tenure of the 20th century, followed a storybook journey from NFL star to World War II hero to deputy attorney general. Yet there was little press fanfare upon his death. Even the passing of the actor Robert Urich the following day received more coverage.
Perhaps not coincidentally, the politicization of the federal judiciary hit a new low in 2002. Prior years had demonstrated the infectious influence of politics on the selection of Supreme Court justices, but by the time White died, the same phenomenon was afflicting the nominations of judges to the lower federal appeals courts to an unprecedented degree. Democratic senators, taking their cues from left-wing interest groups, were holding up such lower-court nominees and setting the stage for their wholesale filibuster in 2003.
Although a Democrat, John F. Kennedy, nominated him, there can be little doubt that someone with White’s views would be subjected to the same treatment from his own party today. White came from an age when judges were celebrated for showing a certain deference to the judgments of democratically elected officials. An unelected, life-tenured judge, the thinking went, should be hesitant to impose his own personal views in striking down laws passed by the people’s representatives. White understood this, once remarking that “judges have an exaggerated view of their role in our polity.”
At the same time, the Constitution contained powerful guarantees of civil rights ratified shortly after the Civil War, guarantees that had been disregarded for many years as the Supreme Court allowed Jim Crow to sweep the old Confederacy. Here, the posture of restraint was not in order, and White was well positioned to know it. As deputy attorney general in the Kennedy Justice Department, he confronted racial segregation directly and personally intervened in Alabama to protect the Freedom Riders. On nominating him to the Court, President Kennedy called White the “ideal New Frontier justice.”
The combination of judicial restraint and a willingness to protect the long-neglected civil rights of African Americans would characterize White’s years on the Court. At the time of his appointment, such champions of judicial restraint as Felix Frankfurter and John Marshall Harlan II were still on the Court, which had recently and unanimously rejected state-sponsored segregation. White would long outlast those early colleagues and remarkably stuck to his principles even as other trends transformed the Court’s role.
Criminal law was one area the Warren Court had to revolutionize without White’s help. White wrote a powerful dissent from the majority’s decision in Miranda v. Arizona (1966), arguing, as he would in later criminal-law opinions, against treating law enforcement with too much distrust: “More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus the values reflected by the privilege [against self-incrimination] are not the sole desideratum; society’s interest in the general security is of equal weight.” Nonetheless, part of White’s restraint entailed later deferring to the precedent that established the now-familiar Miranda warnings after society had come to rely on them.
In the area of civil rights, White consistently voted to expunge segregation and its lingering effects, even to the point of endorsing integration through interjurisdictional busing. It was he who articulated the Court’s standard for identifying discrimination in White v. Regester (1973), an underappreciated voting-rights decision. His opinion in that case advocated weighing the “totality of the circumstances” to determine the presence of racial discrimination, rather than using rigid formulas that could be evaded. Unequal racial outcomes alone did not amount to intentional discrimination prohibited by the Constitution, as his majority opinion in Washington v. Davis pointed out. His approach imparted a certain real-world sophistication and balance to a complex issue, but balance is not always the best way to win the endorsement of legal scholars, a notably ideological constituency. His increasing skepticism of affirmative action as the issue kept returning to the Court did him no favors in that regard, either.
White’s First Amendment decisions for the Court, including one upholding federal regulation of the airwaves and another permitting censorship of a high-school newspaper, probably lost him friends in the media, but they served the public interest. And those inclined (unlike White) to agree with the Court in Texas v. Johnson (1989) that there is a right to burn the American flag should read White’s concurring opinion 15 years earlier in Smith v. Goguen, which presents a nuanced and often overlooked argument drawing a line between protection of the flag from improper use and the freedom to communicate ideas against the flag.
White’s sophistication may have stood out most in cases concerning the structure of the government. Notably, he dissented from the Court’s decision in INS v. Chadha (1983), which declared the legislative veto unconstitutional and invalidated more acts of Congress in one decision than SCOTUS had struck down in its entire history. After years of sanctioning the modern administrative state, White pointed out, the Court was departing from its prior interpretation of the Constitution at precisely the moment when America’s vastly expanding federal bureaucracy could be held accountable by Congress. Whether one agrees or disagrees with the Court in Chadha, White’s dissent addressed as none of his colleagues had up to that time perhaps the most profound and lingering dilemma in modern American governance: how to confer accountability upon a vast, unelected bureaucracy as it plays a growing role in a democratic society. That debate would escalate years after his retirement.
Of course, the question of how to structure the government was and remains of far less popular concern than the contentious issues that grab headlines. In both contexts, White expressed faith in democratic institutions and skepticism of judicial interference, regardless of his personal views. He dissented from Roe v. Wade (1973) and, more often than any of his colleagues, from subsequent decisions that reaffirmed or applied the precedent it set, to his critics’ lasting annoyance. At the time Roe was decided, White’s position — that the Constitution simply does not dictate to elected legislatures how to handle abortion — was generally accepted, and it was the Court’s decision that was the surprise. Like pro-lifers, many pro-choice scholars (and White himself, who at one point privately expressed pro-choice views) had generally understood the distinction between policy preferences regarding abortion and the Constitution’s silence on the issue.
But as the years went by, it became a tenet of liberal political orthodoxy to blur the line between constitutional law and policy preferences, and the widespread skepticism that greeted Roe was replaced with insistence that personal belief in abortion rights must translate into a belief that the Constitution was the source of these rights. This new orthodoxy was, no doubt, the result of political pressure rather than constitutional principle — pressure that the Court felt because most justices had decided to open the door to what White described as “an improvident and extravagant exercise” of judicial power supported by “nothing in the language or history of the Constitution.”
White would never join the tide. In 1992, the last time the Court revisited and upheld Roe, White, the only sitting Democratic appointee at the time, sided with the dissenting justices. This spectacle of the “ideal New Frontier justice” stubbornly refusing to embrace his party’s changing agenda did not help White’s reputation. When he retired from the Court in 1993, he received a notably frostier reception from President Clinton than would Harry Blackmun, the author of the Roe decision, whose retirement the following year was met with a fawning White House ceremony celebrating his service.
White, for his part, either did not care about how he was perceived or drew from his reputed integrity and grit to resist the self-aggrandizement of the Court. What was a justice’s role? White was asked after his brief confirmation hearing in 1962. “To decide cases,” he replied. The answer, like his opinions, so modest and devoid of ideological flamboyance, points to what made him such an anachronism: Restraint of that kind simply does not fly in a hyperpoliticized atmosphere.
In his own confirmation hearing, less than three months before what would have been White’s 100th birthday on June 8, Gorsuch recalled his old boss fondly, but the reminiscences are likely to be more fleeting when the anniversary itself arrives. Forgetting a judge such as White is easier than entertaining the unsettling thought that the judiciary would enjoy a better reputation today if more judges put a belief in the vibrancy of democratic institutions above a belief in their own omniscience, as he did.
— Frank Scaturro served as counsel for the Constitution on the staff of the Senate Judiciary Committee between 2005 and 2009, in which capacity he worked on the nominations of John Roberts and Samuel Alito to the Supreme Court and of Neil Gorsuch to the Tenth Circuit. He is the author of, among other titles, The Supreme Court’s Retreat from Reconstruction.
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