The Greatest Supreme Court Justice

Justice Byron White does not have an excellent reputation among legal scholars or among the general public. Conservatives do not usually remember White too fondly because of his liberal rulings, and he is usually not particularly beloved by liberals because of his conservative rulings. When noted Yale law professor Robert M. Cover wrote his famous New York Times article comparing Supreme Court justices to professional baseball players, he compared White to Jackie Jensen. Cover explained that both Jensen and White were “better as running backs” (White was a noted running back at the University of Colorado in the 1930s). He also found that White was completely overwhelmed by the towering presences in the Earl Warren Court, but that White became more powerful in the Warren Burger Court. Oyez.org was even more scathing in its view of Justice White, calling him “an unmoving pragmatist-lives in infamy both for his individualistic approach to law and his success as a profession athlete.”

[pullquote]Conservatives do not usually remember White too fondly because of his liberal rulings and he is usually not particularly beloved by liberals because of his conservative rulings.[/pullquote]

As the title might give away, I completely disagree with these views on White. I believe that White was a magnificent centrist dedicated to a more equal United Sates, and he was also suspicious of governmental overreach. His life and career were unorthodox for a Supreme Court justice. Born in 1917, he played professional football for one year for the Pittsburgh Steelers and went into the army as an intelligence officer. He wrote the report on the sinking of the PT-109, onboard which was the man who would appoint him to the Supreme Court in 1962: John F. Kennedy. White served as the assistant attorney general under Kennedy and helped protect both Martin Luther King, Jr. and the Freedom Riders in Mississippi. As a Supreme Court justice, legal scholars had no reason to question White’s credentials on the liberal Earl Warren Court as he was an appointee of John Kennedy.

At first, White did not seem to deviate too much from Chief Justice Warren. White joined the majority in Abingdon School District v. Schempp (1963). He wrote the majority opinion of McLaughlin v. Florida in 1964, which partially overruled Pace v. Alabama (1883). McLaughlin allowed two people of two different ethnicities to live together. It would take three more years for Pace to be completely overturned in Loving v. Virginia (1967), a case where White joined a unanimous court. He helped the Court incorporate the right of a trial by jury guaranteed by the Sixth Amendment of the Constitution to the state level in his majority opinion for Duncan v. Louisiana (1968). Even after Warren Burger replace Earl Warren as chief justice in 1969, White continued to support liberal causes. In 1972, White concurred with the 5-4 ruling that determined that the death penalty laws of the United States were too arbitrary in Furman v. Georgia. He wrote for the majority in banning the death penalty for people only guilty of rape in Coker v. Georgia (1977), a landmark ruling in Eighth Amendment jurisprudence. White also spoke for the majority of justices in Duren v. Missouri (1979), when he explained that it was discrimination for juries to not require women selected for jury duty to serve that duty.

As the 1970s progressed, White revealed himself to be quite the conservative in certain issues. For context, the one dissenter in Duren was Justice William Rehnquist, who joined the court in 1971. While White continued to hold the center-right of the Court, he frequently began joining with Rehnquist against many other members of the court. In 1973, they were the sole dissenters in Roe v. Wade. White also joined Rehnquist in supporting Congress’s power to expel non-citizens for no reason whatsoever in Immigration and Naturalization Service v. Chadha (1983). It was also during his time on the Burger Court that White made his great blunder as a writer of a majority opinion in Bowers v. Hardwick (1986). White was incorrect both in his conclusion and in his methodology. Justice Sandra Day O’Connor joined White’s opinion, but would explain in her concurrence in Lawrence v. Texas (2003) why she agreed with White. O’Connor believed that states had the right to ban certain sexual acts (i.e., sodomy) for both sexes. However, O’Connor concurred in Lawrence because the Texas law under question only banned homosexual sodomy, which she considered to be gender discrimination and therefore, unconstitutional. White did not take that road out, and specifically allowed such a ban as a bar on homosexual activities.

Because I consider White to be the greatest Supreme Court justice ever, I must stop to explain a certain hypothesis that might rescue White’s reputation from the Bowers quagmire. All justices either write or join an opinion that later becomes condemned by practically everyone who sees the opinion. Chief Justice John Marshall wrote the majority opinion to Barron v. Baltimore (1833), forbidding the incorporation of the Bill of Rights to the state level in such an authoritative manner that legal scholars are still undoing the damage 170 years later. The revered Justice Joseph Story wrote the majority opinion for Prigg v. Pennsylvania (1842), that allowed the Fugitive Slave Act to override state laws banning the importation of African-Americans to slavery. The sole dissenter in Plessy v. Ferguson (1896) was John Marshall Harlan I, who wrote in the same dissent about not including people of Chinese origins among the American citizenry. The oft-quoted Justice Oliver Wendell Holmes, Jr. wrote the majority opinion in Buck v. Bell (1927), where he argued that a state could sterilize people who the state considered mentally ill. Chief Justice Earl Warren wrote a dissenting opinion that argued for reinforcing a ban on burning the American flag other than the officially recommended way against the majority in Street v. New York (1968) (White admittedly dissented in that case as well). Even White’s most liberal colleagues were not immune from making such blunders. In Osborne v. Ohio (1990), the court ruled that a state could make the mere ownership of child pornography illegal. Justice William Brennan wrote a dissenting opinion that was joined by Thurgood Marshall and John Paul Stevens. Brennan could have argued about whether somebody with such materials in their house knew they had it or whether a family member might have owned it, but he did truly make that argument. Instead, he argued for the right of someone to have what most people considered “distasteful” as part of their First Amendment rights. The lesson of this paragraph is quite simple: No justice can ever be even close to perfect on the Supreme Court.

White actually served his final seven years on the court with Rehnquist as chief justice, further increasing his influence and prestige on the court. He got to see the new guard join Rehnquist as Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas joined the Court in his final years as a justice. White began disagreeing with his new colleagues and began to see how they might be as questionable for the cause of liberty and for a just society as his more left-leaning colleagues were. No case better exemplified his distaste for the conservative new guard than Harmelin v. Michigan (1991). Harmelin argued that Michigan could impose a life sentence without parole on someone for owning 672 grams of cocaine. White dissented vigorously against the rest of the conservative bloc. Harmelin basically crippled Solem v. Helm (1983), a case stating a state could not give a life sentence without parole to someone for merely embezzling around $100. He previously dissented in Solem in 1983, but saw the Court as destroying a harmless precedent of American jurisprudence. White became more concerned about the conservatives while continuing his crusade against abortion, dissenting from the Court when it upheld Roe with certain restrictions in Planned Parenthood v. Casey (1992).

[pullquote]White began disagreeing with his new colleagues and began to see how they might be as questionable for the cause of liberty and for a just society as his more left-leaning colleagues were.[/pullquote]

By 1993, White was the most senior associate justice on the court. President Bill Clinton became the president of the United States in the same year. White stated that someone else should experience service on the Supreme Court to a man who he knew would replace him a left-leaning justice, in that case Justice Ruth Bader Ginsburg. He retired honorably and in relatively good health as he saw the struggles of his colleague, Thurgood Marshall, as Marshall desperately waited for a Democrat to enter the White House. As he saw Marshall honorably leave in 1991, so White followed his example two years later. White retired and died in 2002. Former colleague John Paul Stevens praised White for his knowledge of the balance between the three branches of government, but no one argued that he was the greatest justice in the Supreme Court’s illustrious history.

[pullquote]I believe that White was the greatest Supreme Court justice because of his strong morality and for his hatred of insipid factionalism.[/pullquote]

I believe that White was the greatest Supreme Court justice because of his strong morality and for his hatred of insipid factionalism. White was also not influential because of his strong moral compass in decisions that were unpopular in their time and occasionally in the present. White’s Christian beliefs did not allow him to sign off on abortion, while he saw how Christianity and other religious branches could be oppressed through school-sponsored readings of certain religious texts. He tried to uphold a just and equal society that was fair to all citizens without infringing on the rights of too many people. He refused to cater to any one side, and proved all the while that William Butler Yeats’s poem “The Second Coming” could not have been more incorrect on one particular point. The center can, in fact, hold.

Luke Voyles ’18 studies in the College of Arts & Sciences. He can be reached at lrvoyles@wustl.edu.