Supreme Court’s Byron White Will Step Down After 31 Years : Law: Departure would allow first high court appointee by a Democratic President in quarter of a century. Retirement could mark the start of a gradual shift toward the left.
Justice Byron R. White, the lone Democrat on the Supreme Court, announced Friday that he will retire in June, clearing the way for the first time in a quarter-century for a Democratic President to select a new appointee to the high court.
White’s retirement was not unexpected, although many observers had thought that the court’s oldest justice, Harry A. Blackmun, would depart first. White, 75, a terse, no-nonsense jurist, announced his decision in a typically brief written statement.
“It has been an interesting and exciting experience to serve on the court,” it said. “But after 31 years, Marion (his wife) and I think that someone else should be permitted to have a like experience.”
His departure may signal the demise of the court’s conservative bloc and the beginning of a gradual shift to the left. Without White’s vote, Chief Justice William H. Rehnquist will have difficulty finding a majority for conservative rulings.
Although thought of as a centrist when appointed to the court by President John F. Kennedy in 1962, White--a former All-American football player and Rhodes scholar--in recent years has joined the court’s conservatives on the most charged issues, including abortion, affirmative action, religion and the death penalty.
White “has been in the middle over the years and when you change the center, you change the court,” said former U.S. Solicitor Gen. Rex Lee, a clerk to White in his first year on the bench.
After conferring with the justice on the phone, Clinton praised White for announcing his retirement early so the new White House can take several weeks to consider his replacement.
Unlike his recent predecessors Jimmy Carter, Ronald Reagan and George Bush, Clinton is a lawyer who once taught constitutional law and is expected to play the key role as his Administration sifts through the candidates.
Few decisions for a President “are more weighty, more significant and could have a greater impact on more Americans” than selecting a person for a lifetime appointment on the Supreme Court, Clinton said. “I’m going to pick a person that has a fine mind, good judgment, wide experience in the law and the problems of real people and someone with a big heart,” he said.
But the free advice began flowing quickly.
In an apparent echo of the statements issued during the court battles of the 1980s, Republican senators and leaders of conservative legal groups urged Clinton to avoid a “litmus test” in his selection and to pick someone whose views represent “mainstream” thinking.
“President Clinton will now have an opportunity to prove that he really is a ‘new Democrat,’ ” said Senate Minority Leader Bob Dole (R-Kan.).
By contrast, liberal legal groups, including the Alliance for Justice and the NOW Legal Defense Fund, called on the President to appoint a woman or a member of a racial minority who can “challenge the conservative orthodoxy” on the Republican-dominated court.
The names often mentioned include New York Gov. Mario M. Cuomo; U.S. Appeals Court Judge Amalya L. Kearse of New York; Marian Wright Edelman, head of the Children’s Defense Fund, and U.S. Appeals Court Judge Richard Arnold of Little Rock, a long-time friend of the Clintons.
But Administration officials have said privately they have not had time to carefully prepare a list of candidates for the high court, partly because of the delay in filling the attorney general’s job. By coincidence, a former White clerk, Ronald Klain, was recently named as an assistant White House counsel and given the task of compiling the list of potential candidates.
A second high court vacancy could come soon. “I don’t intend to stay there very much longer,” Blackmun, 84, told law students in Boston earlier this month.
Blackmun, a 1970 appointee of Richard M. Nixon, may leave in June when the court term ends, although some of his friends predicted that he will stay for one more year. They said that Blackmun would like to be the court’s senior justice, a position now held by White.
But of the two, White’s retirement is more significant.
Where Blackmun has been a frequent dissenter of late, White has voted with a narrow majority in recent years to restrict federal civil rights laws, to cut back on preferences for blacks or women in awarding government contracts, to permit more state restrictions on abortion and to uphold death sentences.
In 1973, White dissented along with Rehnquist when the court in Roe vs. Wade said pregnant women had a constitutional right to choose abortion. Last year, he joined Rehnquist and Justices Antonin Scalia and Clarence Thomas in voting to reverse the abortion right, but their effort fell one vote short.
“I think this (retirement) means that Roe vs. Wade is secure,” Lee commented.
In perhaps his most controversial opinion, White wrote for a 5-4 majority that upheld a Georgia law making sodomy a crime. He commented that it “is, at best, facetious” to suggest the Constitution protects the freedom of homosexuals to engage in sex in private.
Blackmun, speaking for the four dissenters, responded that the case, Bowers vs. Hardwick, involved “the right most valued by civilized men: the right to be let alone.”
Among his colleagues, White has been admired as a hard worker and respected for his close attention to facts. He has avoided broad pronouncements on the law or a predictable voting pattern.
“The better I knew him, the more I admired him,” said Justice John Paul Stevens.
But White had a stern demeanor and rarely spoke about himself. Several colleagues have said that, even though they had known him for years, he would not discuss with them his remarkable football career in the 1930s and 1940s.
Born June 8, 1917, in Ft. Collins, Colo., he grew up in a poor, beet-growing community. As a young man, White said, he built strong forearms by picking beets and he put them to use at the University of Colorado.
“Whizzer” White, who had won an academic scholarship, became the nation’s premier college football player in 1937. As a 6-foot-1 halfback, White had the speed to run around defenders and the strength to run over them. He preferred the latter.
“He could blast tacklers out of the way with the forearm and get away with it,” recalled Frank Potts, an assistant coach during White’s era. “He was as hard as iron all over.”
White starred in the classroom too and shocked the entire state of Colorado by threatening for a time not to play in the Cotton Bowl. He said that it would interfere with studying for final exams.
It took the persuasion of the governor and the university president to change his mind and, predictably, he starred in the game. But after graduation, he passed up an immediate offer to turn pro so that he could study at Oxford on a Rhodes scholarship.
In England, he became fast friends with the son of an American millionaire who was then the U.S. ambassador. Young John F. Kennedy and White were virtual contemporaries and their paths crossed often in the years ahead.
During the 1940s, White starred in the new National Football League on weekends, while during the week he studied law at Yale University. He later settled in Denver and began a legal practice.
In 1960, he enlisted in Kennedy’s campaign and helped swing the Colorado delegation to him. In the new Administration, he became the No. 2 man in the Justice Department under Robert F. Kennedy. In May, 1961, he was sent to Alabama to head a contingent of U.S. marshals who were there to protect the “freedom riders,” young blacks who sought to use interstate buses in the South.
In a crisis, White was calm, organized and definitely in charge. His friends said he would have been an ideal leader for the FBI, the CIA and any number of other organizations.
But in April, 1962, his life took a different turn. A vacancy had arisen on the Supreme Court, and President Kennedy and his brother were not enthused about the list of candidates before them. The young President turned to White. Ideology and legal philosophy apparently had nothing to do with the choice.
White and Arthur Goldberg, Kennedy’s second appointee, were simply “his kind of people,” Robert Kennedy said later.
On the bench, White could be a persistent questioner who would not accept a non-answer. “Yes or no. Which is it?” he often said.
Behind closed doors, he could be as tough on colleagues. One justice recalled the painful experience of his first meeting with White.
“My first lesson was, don’t shake hands with Byron White,” he said. The aging justice still had a crushing grip and enjoyed exercising it.
Alone among his colleagues, White refuses to read his opinions from the bench. Instead, he announces simply whether the lower court had been “affirmed” or “reversed.” Often, in print, he has done little more. His opinions typically are short and terse, more an announcement of the court’s conclusion than an explanation of the law.
To no one’s surprise, his announcement Friday came with no fanfare. He simply issued a short announcement.
White’s Major Opinions in Review
A look at some of Supreme Court Justice Byron R. White’s major written opinions.
The issue: White wrote for the court when in 1986 it ruled that consenting adults have no constitutional right to homosexual conduct.
The opinion: “The proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable,” White said.
The issue: The justices ruled in 1991 that news organizations can be sued when they break a promise and disclose a confidential source.
The opinion: “The First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law,” White wrote for the court.
The issue: In 1992, the court ruled that Mississippi must do more to desegregate its state-run colleges.
The opinion: “If the state perpetuates policies and practices traceable to its prior system that continue to have segregative effects,” such policies are unconstitutional “even though the state has abolished the legal requirement that whites and blacks be educated separately . . . . " White wrote.
The issue: White wrote the majority opinion when a divided court in 1989 erected new barriers for workers who seek to use statistical evidence to prove they are victims of racial bias.
The opinion: The worker “bears the burden of disproving an employer’s assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration,” White wrote.
USE OF EVIDENCE
The issue: The justices in 1984 allowed evidence seized using defective search warrants to be used. It narrowed the “exclusionary rule"--which bars use of illegally obtained evidence.
The opinion: “Even assuming the rule effectively deters some police misconduct . . . it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity,” White wrote.
The issue: White wrote for the court when in 1982 it created a new exception to the First Amendment’s protections for speech and expression--any work featuring sexual performances by children under 16.
The opinion: “The states are entitled to greater leeway in the regulation of pornographic depictions of children,” White said.
The issue: White dissented from the court’s landmark 1973 Roe vs. Wade ruling that set the right to abortion.
The opinion: “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,” White wrote. “I find no constitutional warrant for imposing such an order of priorities . . . “
The issue: White also dissented from the 1966 ruling in Miranda vs. Arizona that said people who are arrested must be told of their constitutional right against self-incrimination.
The opinion: White said the ruling “is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials . . . .”
From Star Athlete to High Court Justice
A look at the wide-ranging career of Supreme Court Justice Byron R. White, who announced his retirement Friday:
Education: Valedictorian at the University of Colorado; Rhodes scholar at Oxford University; Yale Law School.
Career: Member of pro football Hall of Fame; chief aide to Atty. General Robert F. Kennedy; nominated to Supreme Court at age 44 by President John Kennedy in 1962.
NAME -- Byron Raymond White.
Quote: “Byron White truly embodies the American dream.”
--Senate Judiciary Committee Chairman Joseph R. Biden Jr., D-Del.