Man Who Once Was Whizzer White

Since White was on the Supreme Court for over 30 years during a most important period in our history, this biography is full of interest for anyone who knows how important the Court is. But a large part of the book is devoted to White's very unusual life before he went on the Court, and even if you are uninterested in football you will find the account of his career absorbing, or at least I did. I remember as a child hearing of Whizzer White, even though my interest in football was derived only from reading the sports pages. This is as good a biography as I have read in a long time. And I don't give out five stors easily.

I first read this biography when it was published in 1998; because I am working with a former White clerk on a matter, I recently took another look--it has held up very well. The author, Dennis J. Hutchinson, long affiliated with the University of Chicago and its law school, had the advantage of having clerked for White. But this is no hagiography, and is quite critical in spots. Because White (1917-2002) has become all but invisible to current generations of Court watchers, and this is the major biography available on him, it is an important book. One measure of the author's thoroughness is that White does not make it onto the Court until page 335 (he served between 1962 and 1993)--the previous pages are devoted to a meticulous account of his prior life, and what a life it was: football All-American; Rhodes Scholar; graduate work at Oxford; then onto Yale Law School while playing in the NFL; valuable work during the war in Naval Intelligence; then clerking on the Court; followed up with a successful law practice and politics in Denver, including work on the JFK campaign in 1960; a stint as Deputy Attorney General under RFK and then appointment to the Court. Hutchinson does not follow the frequent practice of reviewing every major decision a subject made while on the Court; rather the picks out three terms (1971, 1981, and 1991) for extended analysis. He looks at such topics as White's opinion style, including his dissent format; his incremental approach; the problems some had with White's opinion style; his interaction with fellow Justices; and his views on such topics as affirmative action, abortion and finding "new" constitutional rights. Always central to the discussion is White's independence, as manifested for example in being the only Justice against taking away (in effect) Justice Douglas's vote due to his incapacity. The author also speculates as to the forces that did and did not shape (such as Yale legal realism) White's view. White's reputation for being a difficult and distant individual to deal with certainly is borne out by the book, although White clerks will tell you he was great to work for. Whatever, White is a fading figure, and it falls largely to this fine biography to keep his memory and accomplishments alive.

Byron White intentionally did not leave much of a paper trail, as a man distrustful of the press, which is why this book has nowhere near the depth of Jeffries' Powell biography. White may well be most vilified and castigated justice in his own time, a fact which Hutchinson recounts in great detail, because he frequently ruled against the interests of the intelligensia-- frivolous First Amendment rights claimed by the media, and, of course, homosexuals, in Bowers, which won him the most profane attacks of all, from gay rights activists imbued with more passion than respect for the deliberative function of the Courts. White, though he is accused of "moving right" over the course of his career, was in fact remarkably consistent. The problem was that he was guided by a considerably more complex set of principles than most justices, another fact which Hutchinson brings out quite well. He had an extremely uptight view of electoral politics, disliked formalism in all of its forms, was always against categorically forclosing judicial review, and absolutely despised substantive due process, especially Roe v. Wade. Yet White was an extraordinarily fair-minded and scrupled man. He was the only justice to object to the Court's attempt to retire the debilitated Justice William O. Douglas on its own accord, was an aritculate opponent of formalistic separation-of-powers and federalism doctrine, and frequently came out on the side of the downtrodden (see his role in Jacobson v. U.S.). History should view White more kindly than most of his contemporaries-- he was a man totally without an sort of a political agenda, the type of fair-minded and intelligent person so lacking from our Courts today. There are some faults here: Hutchinson's forays into Constitutional commentary in the text are very opaque and inappropriate for the book. This book is generally well-written and well-researched, but its appeal will generally be to hardcore watchers of the Warren, Burger, and early Rehnquist courts or fans of White himself-- evidently a small group, as this book is now nearly out of print.

Hutchinson has written a fascinating contemporary biography of Justice White who is almost unique in his continued insistence on his privacy and personal dignity. Although the author eschews speculation as to White's family or personal life, one still gets a good sense of the man--his intelligence, tenacity, and just plain decency. At least as interesting are the times he lived in, and few lawyers or judges have shared the action and passion of their times more fully than Justice White--first on the gridiron, then in the classroom, in the world of affairs, and on the court. White had his shortcomings as a communicator and legal theorist, as Hutchinson aptly illustrates with the oral and written record. But would that our society had more such self-effacing, dedicated and excellent lawyers and public servants!