Tuesday, April 16, 2002
Page 1
Retired High Court Justice Byron White Dies of Pneumonia at Age 84
Jurist Authored Roe v. Wade Dissent, Urged Split of Ninth Circuit
From Staff and Wire Service Reports
Retired Supreme Court Justice Byron R. White, a football hero whose reputation for clear-headed legal thinking and a hardheaded personality was honed through three decades on the nation’s highest court, died Monday. He was 84.
White served on the court for 31 years before retiring in 1993. In the court’s history, only eight men served longer. His seat was filled by Justice Ruth Bader Ginsburg.
With White’s death, there are no living former Supreme Court justices. He had been ill much of the last two years and looked frail during his rare appearances at the Supreme Court. White had kept a court office since his retirement, but closed it last year and moved back to his native Colorado, a signal to many that his health was perilous.
White died yesterday morning in Denver, of complications from pneumonia, a statement from the Supreme Court said.
Before his illness, the jurist remained active in legal affairs. He sat by designation on several appellate courts, including the Ninth U.S. Circuit Court of Appeals, and headed the controversial Commission on Structural Alternatives for the Federal Courts of Appeals.
White’s willingness to take on that position at such a late stage of his career “speaks volumes about his commitment to the administration of justice,” Ninth Circuit Judge Pamela Ann Rymer said yesterday.
Rymer, the lone Californian on the commission, also sat with White on a Ninth Circuit panel where he served by designation. She remembered him as “very private and reserved” unless he was discussing sports.
The former college and professional football star, once known as “Whizzer” White, could recall “every detail of every game he ever played,” Rymer said. And he was also known to play some “pretty rough” pickup basketball games during his time at the court, Rymer said.
The commission on which they served, appointed by Chief Justice William Rehnquist, recommended in 1998 that the Ninth Circuit be divided into three geographic divisions. The Northern and Eastern districts of California would have been part of the Middle Division, and the Central and Southern districts would have been included in the Southern Division.
Each division would have had its own body of caselaw, with cases decided either by three-judge panels or division en banc courts. A Circuit Division, made up of judges from all three divisions, would have had discretion to resolve conflicts.
The plan drew fire, in part because of the traditional support of the court’s judges for keeping it intact and in part due to claims that it would have deprived California of a uniform body of federal decisional law. Legislation to implement it stalled in committee and has not been reintroduced in the current Congress.
White was “sensitive to the political implications” of the proposal, Rymer recalled. But he thought the division plan was a good idea, she said, and “he was always kind of direct” in making his thoughts known.
Appointed to the high court by President Kennedy in 1962, White soon became a dissenter from many of the court’s liberal rulings of the 1960s.
Later in his tenure, he was a consistent, if independent, member of the court’s increasingly conservative majority. A hard-liner on law-and-order issues, White often spoke for the court in decisions enhancing police authority.
He dissented from the court’s landmark 1973 ruling in Roe v. Wade, which legalized abortion nationwide, and thereafter steadfastly voted in favor of allowing states to regulate, or even outlaw, abortion.
White’s record on other divisive social issues was mixed.
He voted to give federal courts broad power to order racial desegregation of the nation’s public schools, and often sided with the court’s liberal wing in civil rights disputes. But he later opposed broad use of “affirmative action” to remedy past discrimination in employment.
White’s votes in free-speech and free-press cases were mixed, but generally he opposed expansive freedom-of-expression rights. He favored greater governmental accommodation of religion—in ways more liberal justices considered violations of the constitutionally required separation of church and state.
His opinion writing reflected his essential character: precise, methodical and impatient to finish the job.
On the bench, the gravelly voiced White was a tough interrogator of the lawyers who appeared before the court. His questions were brief and direct, and he had zero tolerance for the ill-prepared or longwinded.
In making Byron Raymond White his first Supreme Court pick, Kennedy said White had “excelled in everything he had attempted.”
White’s academic record, professional career and the sports pages backed up that assertion.
The valedictorian of his high school and University of Colorado class, White went on to study at Oxford and become a high-honors graduate of the Yale University Law School.
But to a generation of American sports fans he was better known as “Whizzer” White, the football player who won All-America honors and National Football League stardom. He later came to hate the nickname, although that didn’t stop the NFL Players Association from creating the Whizzer White Award for community service.
He rarely spoke for publication. One of the few interviews he ever gave was for the NFL’s Gameday magazine, in which he decried the pressures placed on high-paid, highly visible modern athletes.
White was 44, the same age as Kennedy, when he joined the court. The two had met in 1939 in England, where White studied as a Rhodes scholar and Kennedy’s father was U.S. ambassador.
The two men’s paths again crossed during World War II when White, a naval intelligence officer, wrote the official report of the sinking of Kennedy’s PT-109.
Active in Kennedy’s later presidential campaign, White was named as Attorney General Robert F. Kennedy’s deputy in charge of day-to-day operations at the Justice Department. His court nomination came a year later.
Throughout his long judicial career, White was known as one of the high court’s clearest thinkers — a centrist who often provided key votes on divisive issues.
White wrote for the court when it ruled that the Constitution did not allow news reporters to withhold confidential information from grand juries.
White also authored decisions that struck down capital punishment for rapists, declared nude dancing to be a constitutionally protected form of expression, exempted “kiddie porn” from free-speech protections, and stripped presidential Cabinet members of the absolute immunity form civil lawsuits they once enjoyed.
White wrote for the court when in 1984 it for the first time carved out a “good faith” exception to the long-standing rule excluding from criminal trials any evidence unlawfully seized by police. White said objects seized through police officers’ use of a defective search warrant could be used as trial evidence.
In a 1976 decision that proved a serious and lasting setback for civil rights activists, White’s opinion for the court established that discriminatory “intent”—not just “impact”—must be proved when constitutional racial bias is charged.
White was born June 8, 1917, in Fort Collins, Colo., but grew up in tiny Wellington, where his father was a lumber dealer and staunch Republican mayor.
He attended public schools there, and went on to the University of Colorado. Despite part-time work and his involvement in three sports, White finished first in the 267-member class of 1938.
By the end of his senior year, White was the best-known collegiate football player in the nation—a runner, passer and punter of unmatched accomplishments.
He became the highest-paid professional football player in 1938 when the National Football League’s Pittsburgh Steelers offered him $15,800 for a one-year contract.
He postponed his studies at Oxford to become the league’s leading rusher in the 1938-39 season. The next season he again topped all league rushers as a member of the Detroit Lions, becoming the first player ever to lead the league in rushing in his first two years.
Copyright 2002, Metropolitan News Company