Byron White was appointed to the Supreme Court by President John F. Kennedy in 1962. During his tenure on the Court he distinguished himself as a maverick on several occasions and was not susceptible to the evolving views of society when he approached cases presented to him. He was one of the best modern-day examples of judicial independence and has received praise from both sides of the ideological aisle. With that being said, it is hard to classify him as either a judicial conservative in the mold of Justice Scalia or a judicial liberal in the mold of Justice Ginsburg. Nor should he be thought of as an ardent Constitutionalist. Rather, he was a justice that understood and embraced a humbleness in his duties as a jurist and recognized the Supreme Court as not a place for judicial legislating, but rather a place for judicial evaluating. It also should be noted that Justice Gorsuch clerked for him.

This post will reflect on a couple of Justice White’s major opinions where he exercised judicial deference in contemplating his role as a justice adjudicating these major matters that held heavy societal implications. Justice White fully embraced his role as a jurist and the duties that came with that responsibility. Alexander Hamilton’s words in Federalist 78 in describing the Supreme Court, “It may truly be said to have neither FORCE nor WILL, but merely judgment” come to mind when reflecting on Byron White.

Justice White was hesitant to endorse the creation of new Constitutional rights and his dissent in Roe v. Wade[1] reflects this perspective.  This sense of judicial humbleness should be embraced by judges today on the bench and be a persuasive characteristic when appointing and voting for the confirmation of judges.

A notable excerpt gives us insight into Justice White’s approach and why this should be a viable standard of measurement for judicial appointments in the modern day:

“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….  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.”[2]

He dissects Roe and is very critical of the process outlined in the majority opinion in which the Supreme Court invalidated valid democratic decision-making by state legislatures regarding abortions. It expanded the 14^th Amendment liberty interest that had already been found to encompass the right to privacy in Griswold v. Connecticut[3] to include the right to abortion. Although concurring in Griswold, he found Roe went too far with creating the right to abortion and overruling the decisions of many states on the issue.

Inventing a Constitutional right that will have a major impact on society is not something that should be taken lightly and Justice White firmly believed it was not the place of the Court to end the debate with its ruling. He recognized the power given to the Court in judicial review, but warned that this opinion was an abuse of that power.

Retired Supreme Court Justice John Paul Stevens, who served along side Justice White for many years on the Supreme Court, acknowledged Justice White’s later reluctance to have the judiciary exert excessive influence when it comes to evaluating the liberty interest under the 14^th Amendment. He stated in his work, Cheers! A Tribute to Justice White, that

“Justice White’s opinions, like those of Justices Harlan, Frankfurter, and Cardozo, demonstrate a conviction that the judicial power to define the concept of liberty is not open-ended.”[4]

This conceptual understanding further manifests itself in Justice White’s majority opinion in the case, Bowers v. Hardwick[5]  that concerned state statutes criminalizing sodomy. He demonstrated judicial restraint by not elevating sodomy to a fundamental right, but rather allowing democracy to run its course with the states maintaining the decision-making authority on the matter and maintaining their freedom to assess the merits of the statutes:

“Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. 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. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires 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. The claimed right pressed on us today falls far short of overcoming this resistance.[6]

He positioned himself as a firm critic of judicial intervention when there is no textual anchor to create a fundamental right, most specifically in regards to interpreting the due process clauses in the Constitution. His words hint at the danger of the nation falling under rule by the judiciary when these clauses are distorted to find a fundamental right when the text has not clearly stipulated it. He goes so far as to coining the Court “nearest to illegitimacy” when it takes this path. These are strong words, but this understanding should be embraced in the modern day as judges come to better grasp their role in interpreting, rather than making law.

Overall, Justice White’s approach to the bench can be considered one of humbleness in embracing his role as a Supreme Court jurist and not being afraid to defer to democracy when the case presented calls for it. The independence streak he displayed is a model for judges tasked with the responsibility to interpret law. It is doubtful he was concerned about how the history books would view his jurisprudential legacy, but rather more likely his chief concern was upholding the Constitution and recognizing the limitations that come with this task.

We will close with these thoughts offered by J. Thomas Sullivan on Justice White in his work, Justice White’s Principled Passion for Consistency:

“[H]e demonstrated a strain of judicial independence and dedication to principle that encourages us, as lawyers, to believe that all presidential appointments to the High Court have the potential for faithful service to a vision of the Constitution that is not imbedded in extreme political ideology or blindness to the virtues of reasoned argument.”[7]

Let us take these words to heart and honor Justice White’s legacy by entering a post-politically charged phase when it comes to the appointment of judges. When these judges assume their position on the bench, let them then follow in his footsteps and recognize their role and the limitations it brings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] 410 U.S. 113 (1973).

[2] 410 U.S. 179 (1973), 221-23. (Doe v. Bolton- companion case to Roe- dissent taken together)

[3] 381 U.S. 479 (1965).

[4] John Paul Stevens, Cheers! A Tribute to Justice Byron R. White, 1994 BYU L. Rev. 208, 214 (1994).

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1796&context=lawreview

[5] 478 U.S. 186 (1986).

[6] Id. at 194-95 (Later this case would be overturned by Lawrence v. Texas , 539 U.S. 558 (2003) which overturned a Texas Criminalized Sodomy Statute).

 

[7] J. Thomas Sullivan, Justice White’s Principled Passion for Consistency, 4 J. App. Prac. & Process 79, 80 (2002) https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1035&context=appellatepracticeprocess