THE MAN WHO ONCE WAS WHIZZER WHITE:
A Portrait of Justice Byron R. White
By Dennis J. Hutchinson
The Free Press, 577 pages, $30
In the last few years, distinguished legal scholars have produced impressive contributions to the field of judicial biography, most notably Jean Norton Smith on Chief Justice John Marshall, John Jeffries on Supreme Court Justice Lewis Powell and Gerald Gunther on Judge Learned Hand. In some respects, Dennis Hutchinson’s “The Man Who Once Was Whizzer White” must be added to this list. Hutchinson, a professor of law at the University of Chicago and senior editor of the prestigious Supreme Court Review, has written an elegant, insightful and balanced portrait of the football star, war hero, Kennedy confidant, and Supreme Court justice for whom Hutchinson once served as a law clerk.
At the same time, the book must be ranked a disappointment. This is not the fault of the author, but of the subject. Few if any Americans have a resume to match Byron White’s: His extraordinary and varied accomplishments–all-American football player, Rhodes scholar, National Football League sensation (including induction into its Hall of Fame), decorated Navy officer, law clerk to Chief Justice Fred Vinson, deputy attorney general in the Kennedy administration and Supreme Court justice–have led some to describe White as both Clark Kent and Superman. Yet for all his achievements, and despite Hutchinson’s affectionate treatment, what emerges unmistakably is the poignant sense that this man of many talents was badly miscast for the longest and most important role of his life–his 30 years on the nation’s highest court. Proudly anti-intellectual, uncollegial in his process of decision and opaque in his style of opinion writing (as Hutchinson candidly reports), White left few interesting footprints for a legal biographer to examine. Accordingly, many parts of this book, despite its high quality, are ironically lifeless given the vitality of White’s external achievements. And this feeling is exacerbated by the near-absence of any discussion of White’s personal life, including his wife of 50 years.
Hutchinson’s approach reflects a deep belief in the old adage about character being formed on the playing fields of Eton, though, in White’s case, those fields belonged to the University of Colorado, Oxford and the NFL. The author spends nearly one-third of his book recounting White’s career as a sports star, beginning with when the Denver Post first saddled the Colorado sensation with “Whizzer,” a nickname “he did not seek, did not like, and could not shake,” and culminating with White’s 1941 season as a pro for the Detroit Lions, during which one hometown paper described him, not without some cause, as “the greatest all-around back in football.”
These chapters contain interesting tangents for sports buffs, especially the glimpse they offer of the NFL’s early days, when the league’s patriarchs, such as Art Rooney and Tim Mara, scratched and clawed to turn a sideshow into big business. In this, the marketing of the “Whizzer” played no small part.
More to the point, beneath Hutchinson’s recounting of White’s on-field exploits (good and bad) lies a deeper explanation of his essential nature. Hutchinson presents a portrait of a young man burning with unmatched competitive fire and considerable physical courage, who attacked library books and athletic opponents with equal and unrivaled abandon. ” `There was never any patty-caking with Byron,’ ” a teammate recalled. ” `You’ve heard that “winning isn’t the only thing.” Well, that’s just stuff. Byron thought it was the only thing.’ “
Naturally, these attributes served White to great effect on the gridiron and in the classroom. More important, they were ideally suited to the world in which White came of age–war-torn abroad and incipiently divided at home–and this strength of character played a crucial part in White’s early professional triumphs. As a naval intelligence officer in the Pacific theater during World War II, White proved resourceful and brave. In a particularly moving passage, Hutchinson quotes a comrade’s description of White’s heroism in the wake of a kamikaze attack on his ship as he used “his phenomenal strength to lift a beam . . . to rescue some people who were pinned under (it) and were about to be killed by fire.”
Years later, in the midst of the worst civil rights crisis of the Kennedy presidency, White would display similar fortitude. Though ill with a severe ulcer, then-Deputy Atty. Gen. White volunteered to lead a contingent of federal marshals to Alabama in the midst of the mob attacks and bus burnings brought on by the Freedom Riders’ crusade to break the stranglehold of Jim Crow on public transportation in the South. Although the merits of the Kennedy Justice Department’s ultimate policy with respect to the Freedom Riders–arranging their safe passage while permitting their arrest–may be disputed, there can be no gainsaying White’s courage and integrity in facing down Alabama’s race-baiting governor, John Patterson–an exchange Hutchinson includes as an appendix.
There is, of course, no telling what might have become of White had John Kennedy not selected him to replace Justice Charles Whittaker, who retired unexpectedly in 1962. But it is hard to imagine a setting less natural to the disposition of this highly intelligent man of action with little patience for legal theory, abstraction or discourse than the cloistered world of the high court, where his competitive zeal would be limited to basketball games with clerks, intimidating lawyers at oral argument and drafting opinions with greater frequency and alacrity than his colleagues.
Hutchinson does a wonderful job getting to the heart of White’s legal thinking, casting aside silly efforts to characterize him as either liberal or conservative. Two tenets stand out, each seemingly a product of his training and experience.
First, White was a skeptic of broad uses of judicial power, especially those (such as Roe vs. Wade) where the court used an elastic reading of the constitutional right to due process to strike down legislation and impose judicial solutions on divisive social problems. Although this view marked White as conservative in the modern era, it was in fact the ascendant liberal view during White’s education as a lawyer when progressives were reacting against a reactionary court that (in the 1930s) had used the due process clause to strike down essential elements of Roosevelt’s New Deal.
Second, White almost invariably upheld the use of federal power, specifically congressional power, to intervene to solve social and economic problems. Growing up in Colorado, surrounded by the sugar-beet industry, White had seen firsthand the importance of federal policy to basic economic survival. Later, his experience in the Justice Department had confirmed the value of federal intervention, most obviously in the area of civil rights. White’s devotion to federal authority sometimes led him to incongruous conclusions, such as voting to strike down state and local affirmative-action programs while voting to uphold no less objectionable federal ones. But Hutchinson correctly identifies the often-overlooked internal consistency of White’s views.
Yet while Hutchinson clarifies the impetus underlying White’s jurisprudence, he cannot, despite valiant effort, infuse it with superior quality or lasting import. In 30 years, there is scarcely a line of doctrine, area of law, legal test or even memorable phrase that one can associate with White. As Hutchinson admits, “White wrote opinions that were often densely presented and no better than implicit about their theoretical premises.” And while Hutchinson would justify White’s self-effacing style as an appropriately lawyerly approach to deciding cases, by Hutchinson’s own account White frequently abandoned the lawyerly virtues of close attention to facts and careful balancing of arguments. (Nowhere is this more true than in White’s most famous opinion, Bowers vs. Hardwick, in which he dismissed as ” `at best, facetious’ ” the complex and substantial claim that the Constitution protects the right of homosexuals to engage in consensual sex within their own homes).
Not infrequently, Hutchinson reveals, White considered leaving the court. Others close to the justice wondered whether he was in the best place to make his best contribution to the nation. Finishing Hutchinson’s account of White’s career, one can’t help but think that there was much to this question–that the court would have been little diminished and the nation better served had White pursued a different avenue of public life. But he did not, and that leaves both the biographer and his audience wanting.
