Byron White, 84; Ex-Supreme Court Justice

Retired Supreme Court Justice Byron R. White, whose fame as a college football great and star of the National Football League helped propel him to a long career on the nation’s highest court, died of complications of pneumonia Monday in Denver at age 84. He was the last living former Supreme Court justice.

When White stepped down from the court in 1993, he was lauded for 31 years of service as a hard-working, no-nonsense jurist who steered a middle course and avoided broad pronouncements of law.

Appointed an associate justice in 1962 by President Kennedy, White supported the Supreme Court’s drive to end racial segregation and to strengthen civil rights. He was not a conventional liberal, however.

Throughout his career, White defied labeling as a jurist--and he would have had it no other way. A thoroughgoing skeptic, he steered clear of what he saw as ideologues on the left or the right. He just decided cases and did so in terse opinions.

“Judges have an exaggerated view of their role,” said White, who usually balked when his colleagues broke new ground.

His strongest opinions, in fact, were issued in dissent. He disagreed when the court’s majority declared that criminal suspects have a right to remain silent in the Miranda ruling of 1966, and when it struck down laws restricting abortion in 1973.

He condemned the Roe vs. Wade decision as “an improvident and extravagant exercise ... of raw judicial power.” He never accepted the right to abortion as a precedent and voted regularly to overrule it.

His landmark opinions were remarkably few. One exception was the 1986 case of Bowers vs. Hardwick, a ruling that has been widely condemned by constitutional scholars. Speaking for a 5-4 majority, White upheld Georgia’s law that made homosexual sex a crime. To argue that the Constitution’s right to privacy includes such conduct “is at best facetious,” White wrote.

White was a well-respected figure and powerful influence within the court.

Chief Justice William H. Rehnquist called him “a good colleague and a great friend. He came as close as anyone I have ever known to meriting Matthew Arnold’s description of Sophocles: ‘He saw life steadily and saw it whole.’ All of us who served with him will miss him.”

Justice John Paul Stevens met White at Pearl Harbor, where both were naval officers during World War II. “His friendship is one of the treasures of this tour of duty,” he said. “He was the kind of person for whom respect, admiration and affection continue to increase as you learn more about him.”

“Anyone who ever met Byron White will recall his painfully firm handshake. You had to squeeze back hard or he would hurt you,” said Justice Antonin Scalia, who joined the court when White was 69. “I always thought that was an apt symbol for his role on this court.... If there is one adjective that never could, never would, be applied to Byron White, it is wishy-washy.”

“Our thoughts and prayers are with his family and friends,” President Bush said in a statement. “Justice White was a distinguished jurist who served his country with honor and dedication.”

White’s resignation in 1993 cleared the way for the first Democratic appointee to the high court in a quarter-century. President Clinton chose Ruth Bader Ginsburg, the second woman appointed to the court, to fill White’s seat.

Despite his long tenure on the Supreme Court and the many controversies he encountered, the justice never quite escaped his youthful legend as “Whizzer” White, one of the great college players of the 1930s and one of the first stars of the National Football League.

Byron Raymond White was born June 8, 1917, near Wellington, Colo., a small town at the base of the Rocky Mountains whose principal crop was sugar beets.

Though his father ran a lumberyard, young Byron--from the time he began first grade--made extra money by pulling beets, work that he said built his powerful arms.

He graduated first in his high school class, which earned him a scholarship to the University of Colorado in Boulder. Football was just a sidelight, he said, definitely secondary to academics. But in his senior year, he led Colorado to an undefeated season. A 6-foot-1 halfback, he had the speed to run around defenders but preferred to run over them.

“The guy had the strongest forearms and chest development I ever saw. He was hard as iron all over,” said Frank Potts, an assistant coach during White’s era. “He could blast tacklers out of the way with the forearm ... He wasn’t dirty, just mean.”

As a rusher and punt returner, White averaged 246 yards per game, a record that lasted for 51 years. He played defense as well.

Despite his football glory, White kept his campus job, doing kitchen duty at a fraternity house. He made the All-American football team and led his basketball team to the National Invitation Tournament in New York, then the equivalent of today’s NCAA Final Four.

In the spring, White wired his parents with the even bigger news that he had won a Rhodes scholarship to Oxford. But he also was offered $15,800--then the league’s highest salary--to play pro football for the Pittsburgh Pirates (now the Pittsburgh Steelers).

“How can I refuse an offer like that? It will pay my way through law school,” he said at the time.

Torn, he persuaded Oxford to delay his admission until January, and he used the fall months to lead the NFL in rushing.

During his time in England, he became friends with the son of U.S. Ambassador Joseph P. Kennedy. Byron White and Jack Kennedy were contemporaries--born just 10 days apart--and traveled together.

They looked to be an odd pair. White was burly and quiet, while Kennedy was painfully thin and gregarious. White, of course, was famous back home, while young Kennedy was seen as the playboy son of a rich American.

They were both skeptics, and White enjoyed Kennedy’s sarcastic sense of humor. Kennedy was “the most fun-producing man I ever met,” White once recalled.

White spent two terms at Oxford, returning to the United States because of the threat of war. He spent the next two years at Yale Law School. To his fellow students, he resembled Superman: On weekdays, he was Clark Kent, a quiet, studious figure in steel-rimmed glasses. But on weekends, White put on his football pads and starred for the Detroit Lions, again leading the NFL in rushing.

During World War II, White crossed paths with Kennedy in the South Pacific when, as a Navy intelligence officer, he was assigned to write the official report on the sinking of Kennedy’s PT 109.

After the war, “Whizzer” White remained a celebrated figure, the ideal of the scholar-athlete gone to war. He finished his legal studies at Yale, clerked a year for Chief Justice Fred Vinson at the Supreme Court and returned to Denver.

Unlike Kennedy, who delved into politics and was elected to Congress in 1946, White did not relish the spotlight. Shy and reserved, he seemed to resent all the attention given his athletic exploits. He had a special loathing for the sportswriters who dubbed him “the Whizzer.”

His goals, he told a friend, were “to practice law, raise a family and to keep my name out of the ... newspapers.”

By 1960, he was well on the way to achieving his aims. He had married Marion Stearns, the daughter of the University of Colorado’s president, and they had two children, Charles and Nancy.

As an attorney, White avoided the courtroom and immersed himself in bankruptcy and tax cases that required concentration and long preparation.

He shunned politics, too, until Kennedy, by then a senator, asked him to head his 1960 presidential campaign in Colorado. And after Kennedy narrowly won the White House, he recruited his old friend to run the Justice Department under his brother Robert.

A few weeks after the new deputy attorney general moved to Washington, he went out for a lunch at a coffee shop near the Justice Department.

“Say, aren’t you ‘Whizzer’ White?” a waitress asked.

White looked up, a bit perturbed, and answered, “I was.”

Often in the years afterward, unwary well-wishers who were introduced to White at receptions made the mistake of mentioning his football career. Usually he glared, turned and walked away.

But the Kennedys admired White as a model for the new administration. He was smart and tough, a skeptic but one who was committed to public service.

In May 1961, the Kennedys sent him to Alabama with a contingent of 600 National Guardsmen to protect the “Freedom Riders,” the young civil-rights activists who were trying to integrate the interstate bus system over the objection of Alabama’s all-white power structure. As a leader, White was calm, organized and definitely in charge.

The next spring, Supreme Court Justice Charles Whittaker retired, and the Kennedy brothers immediately focused on White to fill his seat. They passed over a long list of Harvard academics and other distinguished lawyers in favor of a rookie Justice Department official with no judicial experience.

White “was no mere professor or scholar, but had actually seen life,” President Kennedy explained. He has “excelled in everything he has attempted,” the president added.

The new justice was less enthused by the nomination than was the president.

“He was a reluctant judge,” said his biographer, University of Chicago law professor Dennis J. Hutchison, a former White clerk. “And many doubt it was the best use of his talents.”

A firm leader and a good organizer, White was well-suited to head the FBI or a similar agency, he said. But “he didn’t have much patience with philosophies and abstractions,” Hutchison said. “And he was not a fluid writer.”

But White’s nomination was widely praised, and he won a quick, unanimous Senate confirmation.

Only a few sour notes were heard. The New York Times editorialized that White, then 44, did not have “the scholarly legal distinction” that might be expected of someone destined for the Supreme Court.

“The ideal justice should be ... a person of intellect and compassion--and because the court must be a teacher--ability to articulate,” the paper said. These were not White’s strengths.

The new justice joined the Warren Court in April 1962 as it neared the height of its liberal and activist period. It struck down state-sponsored school prayers during his first term; a series of subsequent rulings strengthened civil liberties and the rights of criminal defendants.

Chief Justice Earl Warren had a solid liberal majority in Justices Hugo Black, William J. Brennan, William O. Douglas, and, later, Justices Arthur Goldberg (Kennedy’s second nominee) and Thurgood Marshall.

But White disagreed with many of the court’s criminal law decisions.

“In some unknown number of cases, the court’s [Miranda] rule will return a killer, a rapist or other criminal to the street ... to repeat his crimes whenever he pleases,” White wrote in an oft-quoted dissent in 1966.

The 1960s were a dark period for White because of the assassinations of his two closest friends in politics.

On Nov. 22, 1963, he walked the grounds of Robert Kennedy’s Hickory Hill mansion, his arm over the attorney general’s shoulder, just after receiving the news of the president’s assassination in Dallas. Five years later, Robert Kennedy was shot and killed in Los Angeles, a loss that seemed to signal an end to a political era.

During the 1970s, the court moved to the right, as four new appointees of President Nixon took their seats. White found himself at the center, the court’s swing vote.

In 1972, he cast a reluctant fifth vote to strike down death penalty laws as unconstitutional. Unlike the liberals, however, White did not think that executions were cruel and unusual punishment. Rather, he worried that the state laws were vague and did not set clear guidelines on which killers should live and which should die.

Four years later, he joined with a new majority to restore capital punishment after several states, including California, enacted new laws.

Within the court, White was said to be a powerful and respected figure, someone whose views could not be ignored. “If he disagreed with you, you had to endure the frozen glare,” one justice said.

Even in his 70s, White retained powerful forearms and a crushing grip, which he enjoyed exercising as the justices shook hands at the beginning of their conferences.

During oral arguments, he was combative. When he asked questions of a lawyer, he insisted on a direct answer, not an explanation.

“Well, your honor, we contend that ... ,” one lawyer began his reply.

“Yes or no? What’s your answer?” White snapped.

Outside the court, White’s influence was limited, however, because his writings were bland and uninformative. His opinions, as more than one commentator noted, seemed designed to convey as little as possible.

In his later years, he seemed more at home on the conservative court led by Chief Justice Rehnquist. But even then, he sharply dissented when the conservatives cut back on the powers of Congress and bolstered states’ rights. Until the end, he retained the basic views of an early 1960s Democrat--a strong belief in federal power and a commitment to civil rights.

Though White left Colorado in 1961 and lived in the Washington area for 40 years, he never lost touch with his home state.

He returned annually for the judicial conference of the U.S. 10th Circuit Court of Appeals and, after his retirement, worked part time as a judge there. In 1994, Congress renamed the federal court building in Denver in his honor. He returned to Colorado last year.

He is survived by his wife, Marion; a son, Charles; and a daughter, Nancy White Lippe.

Funeral arrangements were pending.