|Associate Justice of the Supreme Court of the United States|
April 16, 1962 – June 28, 1993
|Nominated by||John F. Kennedy|
|Preceded by||Charles Whittaker|
|Succeeded by||Ruth Bader Ginsburg|
|4th United States Deputy Attorney General|
January 20, 1961 – April 16, 1962
|President||John F. Kennedy|
|Preceded by||Lawrence Walsh|
|Succeeded by||Nick Katzenbach|
|Born||Byron Raymond White
June 8, 1917
Fort Collins, Colorado, U.S.
|Died||April 15, 2002
Denver, Colorado, U.S.
|Resting place||St. John's Cathedral|
|Spouse(s)||Marion Stearns (1946–2002)|
|Alma mater||University of Colorado, Boulder
Hertford College, Oxford
|Service/branch||United States Navy|
|Battles/wars||World War II
• Pacific Theatre
|Awards||Bronze Star (2)|
|Height:||6 ft 1 in (1.85 m)|
|Weight:||187 lb (85 kg)|
|High school:||Wellington (CO)|
|NFL draft:||1938 / Round: 1 / Pick: 4|
|Career highlights and awards|
|Career NFL statistics|
Byron Raymond "Whizzer" White (June 8, 1917 – April 15, 2002) won fame both as an American football halfback and as an associate justice of the Supreme Court of the United States. Born and raised in Colorado, White played in the National Football League for three seasons and practiced law for 15 years before his Supreme Court appointment. White was the Colorado state chair of John F. Kennedy's 1960 presidential campaign.
White was appointed to the Supreme Court by Kennedy in 1962. He viewed his own court decisions as based on the facts of each case rather than as representative of a specific legal philosophy. He retired in 1993 and is the twelfth longest-serving justice in Supreme Court history. He died in Denver at the age of 84. He was the first Supreme Court Justice from the state of Colorado.
- 1 Early years
- 2 Pro football and graduate school
- 3 Military service
- 4 Personal life
- 5 Legal career
- 6 Supreme Court
- 7 Later years and death
- 8 Awards and honors
- 9 Video
- 10 See also
- 11 References
- 12 Further reading
- 13 External links
Born in Fort Collins, Colorado, White was the younger son of Maude Elizabeth (Burger) and Alpha Albert White, neither of whom attended high school. He was raised in the nearby town of Wellington, where he obtained his high school diploma in 1934.
After graduating at the top of his tiny high school class of six, White attended the University of Colorado in Boulder on a scholarship, offered to all Colorado high school valedictorians, as his older brother Sam had done. He joined the Phi Gamma Delta fraternity and served as student body president his senior year. Graduating Phi Beta Kappa in 1938, he won a Rhodes Scholarship to the University of Oxford in England; after deferring it for a year to play pro football, he attended Hertford College, Oxford. During this time in England, he became acquainted with Joe and John Kennedy, as their father Joseph Kennedy was the U.S. ambassador in London.
White was an All-American halfback for the Colorado Buffaloes, where he acquired the nickname "Whizzer" from a newspaper columnist, which followed him throughout his later legal and Supreme Court career, to his chagrin. As a senior, White led Colorado to an undefeated 8–0 regular season in 1937, but they lost to favored Rice Institute of Houston 28–14 in the Cotton Bowl in Dallas on New Year's Day. He was the runner-up for the Heisman Trophy, behind Yale quarterback Clint Frank, and also played basketball and baseball at CU. The basketball team advanced to the finals of the inaugural National Invitation Tournament at Madison Square Garden in March 1938, a year before the first NCAA tourney.
Pro football and graduate school
White had originally planned to attend Oxford in 1938 and not play pro football. He was selected fourth overall in the 1938 NFL draft, held in December 1937, by the NFL's Pittsburgh Pirates (now Steelers), and became a Rhodes Scholar days later. Oxford allowed White to delay his start to early 1939, so he accepted the Pittsburgh offer in August and played the 1938 season in the NFL. He led the league in rushing as a 21-year-old rookie and was its highest-paid player. He sailed to England in early 1939, with the intent of staying for three years.
|Of all the athletes I have known in my lifetime, I'd have to say Whizzer White came as close to anyone to giving 100 percent of himself when he was in competition.|
|~- Pittsburgh Pirates/Steelers owner
With the outbreak of World War II in late summer, White returned to the United States. He was admitted to Yale Law School in early October 1939, a week after classes began, and also played for the Detroit Lions in 1940 and 1941. In three NFL seasons, he played in 33 games. He led the league in rushing yards in 1938 and 1940, and he was one of the first "big money" NFL players, making $15,000 per year (equivalent to $250,000 in 2015).
His NFL career was cut short when he entered the U.S. Navy in 1942; after the war, he elected to finish law school rather than return to football. He was elected to the College Football Hall of Fame in 1954.
During the war, White served as an intelligence officer in the U.S. Navy, stationed in the Pacific Theatre. He had originally wanted to join the Marines, but was kept out due to being colorblind. He wrote the intelligence report on the sinking of future President John F. Kennedy's PT-109. White was awarded two Bronze Star medals, and was discharged as a lieutenant commander.
White first met his wife Marion (1921–2009), the daughter of the president of the University of Colorado, when she was in high school and he was a college football star. During World War II, Marion served in the WAVES while her future husband was a Navy intelligence officer. They married in 1946 and had two children: a son named Charles Byron (Barney) and a daughter named Nancy. At the time of his death, White and his wife had moved back to Colorado and were living in Denver.
His older brother Clayton Samuel "Sam" White (1912–2004) was also a high school valedictorian and Rhodes Scholar. He later became a physician and medical researcher, particularly on the effects of atomic bomb blasts.
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 economy flourished, and White rendered legal service to the business community. White was for the most part a transactional attorney; he drafted contracts and advised insolvent companies, and he argued the occasional case in court.
During the 1960 presidential election, White put his football celebrity to use as chair of John F. Kennedy's campaign in Colorado. White had first met the candidate when White was a Rhodes scholar and Kennedy's father, Joseph Kennedy, was Ambassador to the Court of St. James. During the Kennedy administration, White served as United States Deputy Attorney General, the number two man in the Justice Department, under Robert F. Kennedy. He took the lead in protecting the Freedom Riders in 1961, negotiating with Alabama Governor John Malcolm Patterson.
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. Kennedy said at the time: "He has excelled at everything. And I know that he will excel on the highest court in the land." The 44-year-old White was approved by a voice vote. He would serve until his retirement in 1993. His Supreme Court tenure was the fourth-longest of the 20th century.
Upon the request of Vice President-Elect Al Gore, Justice White administered the oath of office on January 20, 1993 to the 45th U.S. Vice President. It was the only time White administered an oath of office to a Vice President.
During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court, and 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. He was seen as a disappointment by some Kennedy supporters who wished he would have joined the more liberal wing of the court in its opinions on Miranda v. Arizona and Roe v. Wade.
White often took a narrow, fact-specific view of cases before the Court and generally refused to make broad pronouncements on constitutional doctrine or adhere to a specific judicial philosophy. He preferred to take what he viewed as a practical approach to the law to one based in any legal philosophy. In the tradition of the New Deal, White frequently supported a broad view and expansion of governmental powers. 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.
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's first published opinion as a Supreme Court Justice, a sole dissent in Robinson v. California (1962), foreshadowed his career-long distaste for the doctrine. In Robinson, he criticized the remainder of the Court's unprecedented expansion of the Eighth Amendment's prohibition of "cruel and unusual punishment" to strike down a California law providing for civil commitment of drug addicts. He argued that the Court was "imposing its own philosophical predilections" on the state in this exercise of judicial power, although its historic "allergy to substantive due process" would never permit it to strike down a state's economic regulatory law in such a manner.
In the same vein, he 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 Justice William 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.
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 1930s and 1940s, 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 three justices joined Brennan's plurality opinion in Frontiero; in later cases gender discrimination cases would be subjected to intermediate scrutiny (see Craig v. Boren).
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.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
White's opinion in Bowers typified 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. Georgia, however, conceded during oral argument that the law would be inapplicable to married couples under the precedent set forth in Griswold v. Connecticut.). A year after White's death, Bowers was overruled in Lawrence v. Texas (2003).
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 arbitrary nature in 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 executed 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; thus, he wrote the opinion in Coker v. Georgia (1977), which invalidated the death penalty for rape of a 16-year-old married girl. However, his first reported Supreme Court decision was a dissent in Robinson v. California (1962), in which he criticized the Court for extending the reach of the Eighth Amendment. In Robinson the Court for the first time expanded the constitutional prohibition of “cruel and unusual punishments” from examining the nature of the punishment imposed and whether it was an uncommon punishment − as, for example, in the cases of flogging, branding, banishment, or electrocution − to deciding whether any punishment at all was appropriate for the defendant’s conduct. White said: “If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress.” Consistent with his view in Robinson, White thought that imposing the death penalty on minors was constitutional, and he was one of the three dissenters in Thompson v. Oklahoma (1988), a decision that declared that the death penalty as applied to offenders below 16 years of age was unconstitutional as a cruel and unusual punishment.
Along with Justice William Rehnquist, White dissented in Roe v. Wade (the dissenting decision was in the companion case, Doe v. Bolton), castigating the majority for holding that the U.S. Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."
White consistently supported the Court's post-Brown v. Board of Education attempts to fully desegregate public schools, even through the controversial line of forced busing cases. 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: "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 superseded by the Civil Rights Act of 1991.
Relationships with other justices
White said he was most comfortable on Rehnquist's court. He once said of Earl Warren, "I wasn't exactly in his circle." On the Burger Court, the Chief Justice was fond of assigning important criminal procedure and individual rights opinions to White, because of his frequently conservative views on these questions.
Court operations and retirement
White frequently urged the Supreme Court to 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.
White disliked the politics of Supreme Court appointments. He retired in 1993, during Bill Clinton's presidency, saying that "someone else should be permitted to have a like experience." Clinton appointed Justice Ruth Bader Ginsburg, a judge from the Court of Appeals for the D.C. Circuit and a former Columbia University law professor, to succeed him.
Later years and death
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.
White died of pneumonia on April 15, 2002 at the age of 84. He was the last living Warren Court Justice, and died the day before the fortieth anniversary of his swearing in as a Justice. From his death until the retirement of Sandra Day O'Connor, there were no living former Justices.
Then-Chief Justice Rehnquist said White "came as close as anyone I have known to meriting Matthew Arnold's description of Sophocles: 'He saw life steadily and he saw it whole.' All of us who served with him will miss him."
Awards and honors
The NFL Players Association gives the Byron "Whizzer" White NFL Man of the Year Award to one 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 award in 2000.
The federal courthouse in Denver that houses the Tenth Circuit is named after White.
White was inducted into the Rocky Mountain Athletic Conference Hall of Fame on July 14, 2007, in addition to being a member of the College Football Hall of Fame and the University of Colorado's Athletic Hall of Fame, where he is enshrined as "The Greatest Buff Ever".
- Demographics of the Supreme Court of the United States
- John F. Kennedy Supreme Court candidates
- List of Justices of the Supreme Court of the United States by court composition
- List of Justices of the Supreme Court of the United States by education
- List of Justices of the Supreme Court of the United States by time in office
- List of law clerks of the Supreme Court of the United States
- List of Justices of the Supreme Court of the United States
- United States Supreme Court cases during the Burger Court
- United States Supreme Court cases during the Rehnquist Court
- United States Supreme Court cases during the Warren Court
- List of NCAA major college football yearly rushing leaders
- List of NCAA major college football yearly scoring leaders
- List of NCAA major college football yearly total offense leaders
- "Members of the Supreme Court of the United States". Supreme Court of the United States. Retrieved April 26, 2010.
- Hutchinson, Dennis J. (1993). "The Man Who Once was Whizzer White". Chicago Unbound 103. University of Chicago Law School. p. 43.
- Joan Biskupic (April 15, 2002). Ex-Supreme Court Justice Byron White dies. USA Today. Retrieved October 20, 2008.
- Irish, Leon E. (Summer 2003). "Byron White: A Singular Life". Catholic University Law Review 52: 883.
- Hutchinson, Dennis J. (1998). "The Man Who Once was Whizzer White: Wellington". New York Times. (book excerpt). Retrieved May 3, 2016.
- Martin, Douglas (May 2, 2004). "Sam White, 91, researcher on effects of A-Bombs, dies". New York Times. (obituary). Retrieved May 3, 2016.
- Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. Retrieved October 21, 2008.
- Jan Crawford Greenburg (2007). Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Penguin Group. Retrieved October 20, 2008.
- "Rice wins 28-14; Whizzer White meets Mr. Lain". Chicago Sunday Tribune. Associated Press. January 2, 1938. p. 1, part 2.
- "Clint Frank voted U.S. gridder no. 1". Milwaukee Sentinel. Associated Press. December 1, 1937. p. 21.
- "Colorado, Temple in finals for cage title". Lodi News-Sentinel (California). United Press. March 16, 1938. p. 5.
- "Temple routs Colorado five, 60-36, in final". Chicago Daily Tribune. Associated Press. March 17, 1938. p. 20.
- "Whizzer winds up his career on gridiron". Sunday Spartanburg Herald Journal (South Carolina). Associated Press. December 4, 1938. p. 24.
- National Football League: NFL Draft History; see also 1938 NFL draft.
- "Whizzer White Rhodes Scholar". Bend Bulletin (Oregon). United Press. December 21, 1937. p. 3.
- Burcky, Claire M. (August 1, 1938). "'Whizzer' finally decides to play with Pirates". Pittsburgh Press. p. 21.
- "Whizzer White accepts pro grid offer". Lodi News-Sentinel (California). United Press. August 2, 1938. p. 7.
- Sell, Jack (December 28, 1938). "Whizzer stops over here on way to Oxford". Pittsburgh Post-Gazette. p. 14.
- "Whizzer White leaves Pirates for Oxford, Eng,". Reading Eagle (Pennsylvania). United Press. December 28, 1938. p. 14.
- Tagliabue, Paul (2003). "A Tribute to Byron White". Yale Law Journal (Yale University) 112.
- "Whizzer White just hides out". Spokesman-Review (Spokane, Washington). Associated Press. October 3, 1939. p. 12.
- "Byron White now student at Yale". Daily Times (Beaver and Rochester, Pennsylvania). October 4, 1939. p. 8.
- "Detroit signs "Whizzer" White". St. Petersburg Times. INS. August 20, 1940. p. 10.
- French, Bob (August 27, 1941). "Whizzer White still a student". Toledo Blade (Ohio). p. 22.
- Dennis J. Hutchinson, The Man Who Once Was Whizzer White: a Portrait of Justice Byron R. White, (Glencoe, The Free Press, 1998)
- James, Rembert (September 15, 1943). "'Whizzer' White now on PT staff". Deseret News (Salt Lake City, Utah). Associated Press. p. 1.
- "Navy medal given to Whizzer White". Milwaukee Journal. United Press. June 15, 1944. p. 12, part 2.
- Alexander, John D. (June 29, 1945). "Whizzer White survives Bunker Hill". Deseret News (Salt Lake City, Utah). INS. p. 12.
- "Marion White, wife of late justice, dies at 87". The Denver Post. January 22, 2009.
- (see New York v. United States, 488 U.S. 1041 (1992) (White, J., concurring in part and dissenting in part)).
- See Hutchinson, Dennis (2003). "Two Cheers for Judicial Restraint: Justice White and the Role of the Supreme Court". U. Colo. L. Rev. 74: 1409.
- (See Thornburg v. American Coll. of Obst. & Gyn. 476 U.S. 747 (1986) (White, J., dissenting))
- Oral argument of Bowers v. Hardwick, available at Oyez.org, http://www.oyez.org/cases/1980-1989/1985/1985_85_140
- (see Harmelin v. Michigan, 501 U.S. 957 (1991) (White, J., dissenting))
- Doe v. Bolton, 410 U.S. 179 (1973). Findlaw.com. Retrieved 2011-09-10.
- (See Milliken v. Bradley (White, J., dissenting)).
- See Runyon, 427 U.S. 160, 212 (White, J., dissenting)
- See David M. O'Brien, The Rehnquist Court's Shrinking Plenary Docket, 81 Judicature 58–65 (September/October 1997).
- Commission on Structural Alternatives for the Federal Courts of Appeals.
- Christensen, George A. (2008). "Here Lies the Supreme Court: Revisited". Journal of Supreme Court History 33 (1): 17–41. doi:10.1111/j.1540-5818.2008.00177.x.
- Byron White at Find a Grave
- Presidential Medal of Freedom Recipients, retrieved July 30, 2009
- "RMAC to honor 'Whizzer'". CUBuffs.com. February 25, 2007. Archived from the original on December 26, 2007. Retrieved February 25, 2007.
- "CU Athletic Hall of Fame — Justice Byron White". University of Colorado (Boulder) Athletic Department.
- Oxford: Oxford University Press, 1998. ISBN 0-684-82794-8; ISBN 978-0-684-82794-0
- Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3.
- Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1-56802-126-7.
- Frank, John P. (1995). Friedman, Leon; Israel, Fred L., eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0-7910-1377-4.
- Hall, Kermit L., ed. (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0-19-505835-6.
- Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0-87187-554-3.
- Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. p. 590. ISBN 0-8153-1176-1.
- Woodward, Robert and Armstrong, Scott. The Brethren: Inside the Supreme Court (1979). ISBN 978-0-380-52183-8; ISBN 0-380-52183-0. ISBN 978-0-671-24110-0; ISBN 0-671-24110-9; ISBN 0-7432-7402-4; ISBN 978-0-7432-7402-9.
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|Wikisource has original works written by or about:
- Oyez Project, U.S. Supreme Court media, Byron R. White
- Biography.com – Byron White
- Byron White's season with the 1938 Pittsburgh Pirates
- University of Colorado Athletics Hall of Fame – Byron White
- Byron White at Find a Grave
|United States Deputy Attorney General
|Associate Justice of the Supreme Court of the United States
Ruth Bader Ginsburg