THE LAST JUSTICE
UHLMANN, MICHAEL M.
THE LAST JUSTICE The Life and Times of Byron White By Michael M. Uhlmann When William J. Brennan stepped down from the Supreme Court in 1990, he received a chorus of extravagant praise not heard...
...attorneys, and personally intervened to protect the lives of freedom marchers in segregationist Alabama...
...In the end, White concluded, a man is judged by his deeds, not by the fawning admiration or sniping criticism of observers who know neither the ardors nor the pleasures of competitive success...
...When John F. Kennedy began his run for the presidential nomination in 1959, White (who had met Kennedy in England and, later, in the Solomons) helped the Massachusetts senator capture the Colorado delegation...
...Where Brennan took his oath as a license to roam as he liked, White took his as a self-denying ordinance...
...But there was more to come...
...A shy and indefatigably hardworking lad from the hardscrabble town of Wellington, Colorado, White took from the experience of early fame as an athlete the lesson that those who live by the press release sooner or later die by it...
...Toward the end of his career, Justice White was asked to sum up his philosophy...
...White's own appearance lasted eleven minutes...
...The perfunctory affair lasted about an hour and a half, most of which was taken up with praise from bar associations...
...White is an appealing figure, both for the strength of his conviction and the technical skill he brought to his craft...
...All this and more is recounted with sympathy and commendable clarity by Dennis J. Hutchinson, a former clerk to White and now professor of law at the University of Chicago, in his excellent new study, The Man Who Once Was Whizzer White...
...Again, had his life ended here, it would have been complete enough for almost any man, and the envy of every lawyer aspiring to public distinction...
...What they lacked in doctrinal sophistication, they would make up for in prudential restraint...
...a man suspicious of intellectuals and almost preternaturally indisposed to flights of ideological fancy...
...Seated just down the dais from Bren-nan for nearly three decades was Byron R. White, President Kennedy's first appointment to the Supreme Court...
...But the question remains whether common-sense conservatism and uncompromising professionalism are enough to counteract the seductive appeal of making the Constitution relevant to what an earlier justice, Oliver Wendell Holmes Jr., once called the "felt necessities of the times...
...In 1961, White was named to the Supreme Court, succeeding Charles E. Whittaker, a lackluster Eisenhower appointee...
...He postponed England for a term and, although only a rookie, became professional football's leading ground-gainer with Pittsburgh...
...Although not given to lengthy doctrinal explanations, White nevertheless made it abundantly clear that Roe v. Wade and its progeny comprised an extra-constitutional intrusion into the settled customs of the people, a potential disaster not only for the law but for the court itself...
...It was enough to make Byron White a remarkable public servant and an even more remarkable man...
...Still, given the choice between nine Byron Whites and nine would-be diviners of constitutional doctrine—even nine conservative divin-ers—I'd take the Byron Whites in a minute...
...It was bad enough that he dissented from the Supreme Court's nationalization of criminal procedure...
...Finishing at Yale, he began his clerkship with the chief justice of the United States, Fred Vinson...
...He had his choice of plum assignments in the new administration and finally landed as Robert Kennedy's deputy attorney general...
...Bruce Ack-erman of Yale Law School poisonously dismissed him as having "the arduous sincerity of a man out of his depth...
...The general sense of these glowing appraisals of Brennan's life and work is that he was great because he rewrote the Constitution to look the way law professors think it ought to look...
...It may even be enough for us...
...With just a hint of that twinkle that he shielded from all but the closest observers, he replied: "Work hard, do your duty, and be on time for supper...
...He acquired at an early age the knack of coming out first in nearly everything he did...
...White was everything Bren-nan was not: taciturn, restrained, publicity-shy, instinctively conservative...
...But, worst of all, he dissented vigorously from the court's arrogant imposition of abortion on demand...
...When his legal career was interrupted by World War II, White served with distinction and bravery in the Solomon Islands...
...He capped his service as intelligence chief to Arleigh Burke (one of the most daring and decorated naval officers of the Pacific campaign, who later served for an unprecedented three terms as chief of naval operations...
...Though his record might strike someone like Bruce Ackerman as inferior, most mortals would think that White—before he reached thirty—had already completed a considerable career...
...It was worse when he repeatedly refused to vest the press with special privileges, and worse yet when he asserted that the court lacked special powers of discernment to overturn most legislative judgments...
...In this first book-length assessment of White's life and judicial career, Hutchinson comes as close as anyone is ever likely to come to probing the mind of the enigmatic justice...
...After a year at Oxford, White enrolled at Yale Law School—where, while remaining first in his law-school class, he put in two more seasons with the NFL, this time as a Detroit Lion, and became the league's leading rusher yet again...
...make the court an engine of political and social reform, White fought to keep it an institution of limited functions and powers...
...White's habit of hoarding his privacy extended from personal matters to his opinions on the court...
...He was at best, they said, a non-entity, someone who never got with the program...
...Where Brennan viewed the Constitution as wax for receiving the impressions of elite opinion, White saw it as a bulwark against the follies of intellectual fashion...
...There was a time, however, when Byron White wasn't thought to have done so badly...
...To no one's great surprise, save perhaps his own, he was selected in 1938 as a Rhodes Scholar (following in the footsteps of his older brother...
...Despite his personal and professional reticence, White might nevertheless have risen in the eyes of the law-school crowd had he not committed the gravest sin of all...
...And after Kennedy's nomination, White ran the campaign's national citizens operation...
...With these thrusts, White cut deep at the heart of the liberal campaign to establish a "living Constitution"—a Constitution rewritten by the judiciary and resting on the moral platform of autonomous individualism...
...Upon White's retirement in 1993, sighs of relief echoed from virtually all the professoriate...
...In an era that no longer understands the moral premises of limited government, much less those of judicial self-restraint, White's painstaking case-by-case analysis may be insufficient...
...For all the list-making that normally accompanies Supreme Court appointments, the outcome appears never to have been in doubt...
...THE LAST JUSTICE The Life and Times of Byron White By Michael M. Uhlmann When William J. Brennan stepped down from the Supreme Court in 1990, he received a chorus of extravagant praise not heard since Earl Warren retired in 1969...
...Byron White was nominated on April 11 and had his confirmation hearing a week later...
...He was valedictorian of his class at the University of Colorado while starring in two varsity sports and working twenty hours a week as a busboy...
...There are several thousand years of civilization rolled into the remark...
...And he drove the point home in 1986 when he wrote in Bowers v. Hardwick that to claim due-process protection for homosexual sodomy was "at best, facetious...
...Following his clerkship, he returned to Colorado, joined a six-member Denver law firm, and immersed himself in private practice and local affairs for the next dozen years...
...At the Justice Department, he directed staffing, oversaw the appointment of judges and U.S...
...His disposition was not the sort that attracts strong allies among the footnote fetishists who make or break reputations in the law reviews...
...And when Brennan died last year, there was bestowed upon him the rhetorical equivalent of a state funeral...
...And where Brennan labored to Michael M. Uhlmann is a senior fellow at the Ethics and Public Policy Center in Washington, D.C...
...In his senior year, "Whizzer" White (a name he came to despise) was the most talked-about player in college football, the nation's leading rusher, a consensus All-American halfback who, when he couldn't get around defenders, characteristically bulled or stiff-armed his way through them...
Vol. 3 • August 1998 • No. 46
