University of Colorado Law Review
Volume 74, Issue 4, Fall 2003
FOREWORD
With the passing of Byron R. White in April 2002, Colorado lost one of its greatest contributors to the American judiciary. With this issue we consider and pay tribute to the jurisprudence of Justice White.
Born in 1917, Justice White was raised in Wellington, Colorado. He earned an athletic scholarship to the University of Colorado where he excelled in academics and athletics. White deferred his Rhodes Scholarship for a year to play in the National Football League with the Pittsburgh Pirates. Following one season with the Pirates, he went to England to begin his studies. Unfortunately, the specter of war loomed over Europe and Justice White was forced to cut short his time at Oxford. He returned to the states and enrolled Yale Law School. Rather than accept a position with the Yale Law Review, Justice White spent his weekends playing for the Detroit Lyons. White finished first in his class at Yale.
After a clerkship with Supreme ourt Chief Justice Fred Vinson, Justice white returned to Denver where he practiced law for nearly 15 years. In 1961, President John F. Kennedy appointed Whiter Deputy Attorney General under Robert Kennedy. he served in this position for a short time before being appointed to the Supreme Court by Kennedy in 1962. White's return to the Supreme Court marked the first time a former clerk came to the Court as a Justice. Justice White retired from the Court in 1993.
In January, 2003, the Byron R. White Center for the Study of American Constitutional Law and the University of Colorado Law Review hosted this symposium: Justice White and The Exercise of Judicial Power. The symposium issue begins with an essay written by his successor on the Court, Associate Justice Ruth Bader Ginsburg. Justice Ginsburg reviews Justice White's career, noting his long tenure on the Court, his dedicated public service, and his brilliance and rapidity of mind. Acknowledging Justice White's strong respect for the principle of stare decisis, Justice Ginsburg also delineates his willingness to support women's rights in his dissent to Kahn v. Shevin and his majority opinion in Duren v. Mississippi. Justice Ginsburg concludes with a statement of her intention to emulate Justice White's dedication to his job.
In our second article, Professor William Nelson uses Justice White's anti-elitism and lack of pretention to explain the Justice's jurisprudential legacy. Nelson uses examples of Justice White's actions to illustrate his personal integrity and straightforward style. Nelson argues that Justice White's lack of pretention and pragmatic view of a judge's role helps to explain why it is so difficult to define the Justice's legacy. Professor Nelson concludes that Justice White's sense of duty and strict adherence to democratice principles may ultimately act as a better guide for judges than the adoption of an activist jurisprudential philosophy.
Professor Philip Weiser then builds on Professor Nelson's praise for Justice White's distinctive jurisprudential style. Professor Weiser laudes Justice White for his humility, pragmatism, and "sensitivity to the role of the Supreme Court in superintending a legal system." Professor Weiser concludes by focusing on Justice White's belief that judges should ensure that the role of the judiciary is harmonized with other branches of government.
In our fourth article, Professor Richard Cordray revisits a thesis that Professor Nelson presented at the symposium: that Justice White was the last of the Democratic-Republicans. Professor Cordray presents a compelling argument that Justice White's jurisprudence bears a stronger resemblence to the vision of Federalist justices like Chief Justice Marshall. Professor Cordray concludes that although Justice White believed that judges should generally seek to implement the will of the people, it is impossible to fit his jurisprudence into any preexisting category.
Professor Michael Herz begins our fifth article with an overview of different perspectives on Justice White's legacy. Professor Herz concludes that Justice White's jurisprudence was logically formal yet judicially aggressive in nature. The article continues with an exploration of Justice White's use of means-ends rationality in decision-making as examined through the lens of Justice White's equal protection decisions. Professor Herz suggests that while Justice White was generally deferential to the other branches of government, he nonetheless applied a strict form of rational basis scrutiny to constitutional questions and was more likely than other Justices to find no rational relationship between the means and ends of a given statute. According to Professor Herz, Justice White believed that the Supreme Court conducted its most legitimate form of judicial review when it encountered and overturned laws that either used irrational means or were passed by the legislature in pursuit of irrational ends.
In our sixth article, Professor Philip Soper examines a variety of legal theories, including positivism and natural law, in comtemplating whether such views of law and morality influence judicial decision-making in any concrete way. In support of his thesis that judical restraint is not influenced by any identifiable legal theory, Professor Soper examines multiple Supreme Court decisions, many authored by Justice White, and the factors that influenced the Court. After reaching the conclusion that judicial theories do not significantly affect the Court's decision-making, Professor Soper identifies possible alternative drivers of judicial restraint, namely political theory.
Our seventh article, written by Professor Dennis Hutchinson, reviews praises of Justice White as a model of judicial restraint, but uses several of Justice White's opinions to highlight the fact that Justice White's record is "more complicated that that," and that his deference to legislative and regulatory bodies and his reliance on stare decisis were not merely reflexive. Rather, Professor Hutchison argues that Justice White was "not afraid of embarking on judicial law reform projects if he thought the circumstances warranted," and was "not afraid to reverse himself entirely on a point of law if he had second thoughts."
Professor Bernard Bell wrote the next article, in which he explores the Justice's free speech jurisprudence, especially in media cases, to argue that Justice White was a populist, though not in the sense that the term is used to describe the political movement. Professor Bell highlights Justice White's concern for the ordinary citizen at the mercy of more powerful forces, particularly through his free speech jurisprudence and media cases. Justice White's free speech jurisprudence emerges as a consistent effort to protect the ordinary citizen while ensuring that collective action through government remained feasible.
Commenting on Professor Bell's remarks, Professor John Goldberg maintains that White, who had joined the majority in New York Times v. Sullivan and later advocated an entirely different approach to limiting defamation liability, held to a consistently narrow reading of Sullivan, one which recognized a conditional priviledge to injure certain persons by means of false statements innocently or carelessly published. By contrast, the shifting coalitions of Justices who formed the majorities in post-Sullivan decisions were, for various reasons, being slowly pulled toward the idea that Sullivan had implicitly held that government all together lacks the power to attach liability to the publication of statements on matters of public concern, even when they are published for the purpose of injuring another. In the course of establishing these claims, Professor Goldberg seeks to demonstrate a broader point, namely, that Justice White has been mislabeled by critics and admirers as a "quintessential" New Deal Liberal. The dominant strain of New Deal Liberalism was Benthamite in spirit. It embraced legislation and regulation--public law--as the superior, progressive alternative to hidebound common law. Justice White is an interesting figure in the intellectual history of Twentieth-Century law in part because he was one of the rare New Dealers who appreciated the importance of common law. In his view, the Court's abandonment of Lochner-ism and the idea of laaw as a brooding omnipresence simply did not entail a rejection of the common law as an important means for vindicating individual rights. Thus, his concern that the Court not expand Sullivan turns out to have been motivated by an unfashionable yet coherent conception of our constitutional system in which the private law of tort, property and contract has an important role to play even after the rise of the administrative state.
Our tenth article is Professor Kate Stith-Cabranes's essay on Justice White's criminal law jurisprudence. Professor Stith-Cabranes analyzes several of Justice White's most famous, if not his most controversial, criminal law opinions and draws conclusions about the principles that underlay Justice White's reasoning. Professor Stith-Cabranes notes that Justice White's respect for law, respect for democratic institutions, and respect for government and its officials permeate his opinions. Additionally, Professor Stith-Cabranes notes that Justice White's training in legal realism, respect for precedent and desire to aggressively defend constitutional rights influenced his jurisprudence. Professor Stith-Cabranes discusses the impact of these principles in such White decisions as Robinson v. California, Powell v. Texas, Tennessee v. Garner, and Miranda v. Arizona.
THE EDITORS