Byron White: the Patron Saint of Neutrality.

Justice Byron White

If you’ve been around the pro-life movement for a fair amount of time, you’ve probably heard Roe v. Wade described as a “an exercise of raw judicial power.” You might even know that this quote comes from Byron White’s incisive dissent in Roe. But very little is known about the man himself, and that’s a shame, because Justice White was one of the most amazing men ever to sit on the Supreme Court.

After a stellar career as a superstar running back with the Pittsburgh Steelers, he went into law (how many NFL players can you say that about?), and eventually was offered a spot on the Supreme Court by President Kennedy in 1962. He retired in 1993 after 31 years of service, and died in 2002.

Today, White is primarily remembered for two opinions: his majority opinion in Bowers v. Hardwick, and his dissenting opinion in Roe v. Wade. Because of this, leftists often pigeonhole him as some sort of doctrinaire conservative – a Democratic president’s mistake just as Justice Souter was a Republican president’s mistake. In reality, Byron White was always a man in the middle, and could not be easily classified as either a conservative or liberal.

His time on the bench was dedicated to a near-total pursuit of neutrality and objectivity. Unlike Liberals like Warren or Brennan, or conservatives like Rehnquist or Scalia, White never had an overarching theory of how to decide cases like Originalism, or the “Living Constitution.” Unlike other Justices, who are addicted to sonorous phrases, and pompous displays of Constitutional moralizing, White never saw the Court as some grand tribune of American values. His philosophy was simple, direct, and unmistakable: the Court was there to decide cases and controversies, and to decide them correctly, in accordance with law and precedent.

In line with this, very few of his opinions are particularly memorable. He made a point of writing fast, rather than laboriously crafting opinions with an eye toward being anthologized in a textbook. Modest to a fault, but self-confident enough to completely ignores his loud critics in Ivy League academia, he was uniquely able to avoid the flattery that that often swayed other moderates like Powell, O’Connor, and Kennedy.

Like most Justices on the Court in 1973, White is reported to have favored the legalization of abortion. What separated him from his brethren was his unwillingness to read this policy preference into the Constitution. As I mentioned earlier, White was no Originalist, and was willing to let rights be added to the Constitution in limited circumstances. For example, in Griswold v. Connecticut, he agreed that married couples have a right to use contraception, even though such a right is nowhere to be found in the Bill of Rights. By 1965 however, Connecticut was the only state left that criminalized marital contraceptive use. In Justice White’s eyes, the American people had overwhelmingly come to a consensus that marital contraceptive use was a fundamental choice, and even if they never took the formal step of enshrining this consensus into the text of the Constitution, the consensus was still there.

Roe was a different story entirely. In more than half of the states, abortion was still illegal for any reason except to save the mother’s life, and there was anything but a national consensus over the question. In the absence of a consensus, the Court had absolutely no business declaring anything a new right. White’s approach might be termed, to coin a term, the “Lived Constitution” method. When Americans collectively, but informally, recognized a right, White had no problem ratifying it with a judicial decision. But the Court could never act as a vanguard, and go about declaring rights before the population was ready for them. As he said in his Roe dissent,

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life

Usually, when White was on the losing end of a decision, he accepted the outcome, and moved on. But Byron White never reconciled himself to Roe. Indeed, he saw it as the most fundamentally illegitimate decision of his entire 31 year career on the Court. And really, who can argue with him? The Court makes all kinds of controversial decisions which polarize the public, but usually the initial wave of outrage is forgotten after a few years (anyone remember Kelo v. New London?). Roe is completely unique in how long well-organized opposition to the decision has lasted.

It goes without saying that the Supreme Court is poorer without Byron White’s presence. I would trade him in a second for any of the partisan hacks appointed by Clinton and Obama. And, although I might have to think about it for two seconds instead of one, I’d certainly trade him for Anthony Kennedy, who in so many ways is White’s complete opposite in terms of judicial temperament. It certainly isn’t hard to figure out which one would be more likely to vote based on emotions rather than the law. I don’t mean to suggest that he was perfect; White certainly had his flaws, and did join the liberal wing of the Court in a number of 5-4 heart-breakers. But White deserves far more recognition than he has gotten for his jurisprudence of neutrality, and his abhorrence at imposing value preferences upon the nation.


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