White, Byron R. Summary

  • Last updated on November 11, 2022

A key figure on the Supreme Court under Warren E. Burger and William H. Rehnquist who, though viewed by many as something of an enigma, was often a swing vote. White wrote several important opinions regarding the power of the press and led the Court in crafting a good-faith exception to the exclusionary rule.

White was a well-known football player at the University of Colorado, where he was given the nickname “Whizzer.” He played professional football in 1938 for one season with the Pittsburgh Steelers and was named the National Football League rookie of the year. In 1939 he studied at Oxford as a Rhodes scholar, but his stay was cut short by the beginning of World War II (1941-1945). Upon his return from England, White entered Yale Law School and played football for two seasons (1940-1941) with the Detroit Lions. In May, 1942, he joined the U.S. Navy, serving in the Pacific theater as a naval intelligence officer and attaining the rank of lieutenant. After the war, he finished law school and clerked for Chief Justice of the United States Frederick Vinson during the October, 1946, term. After several years of private practice following his clerkship, he helped organize John F. Kennedy’s successful 1960 presidential campaign. Kennedy appointed White deputy attorney general in early 1961.Kennedy, John F.

Appointment to the Court

White was the first of the two Supreme Court nominations Kennedy made. His nomination engendered little controversy. He served on the Court from 1962 until 1993. During that time, he participated in 807 cases that split the Court five to four (second only to Justice William J. Brennan, Jr.) and was in the majority in 65 percent of them. White joined the Court while Earl Warren was chief justice but was not a major figure in the Warren Court’s rulings. He dissented from several of the Court’s decisions expanding the rights of criminal defendants, most notably Miranda v. Arizona[case]Miranda v. Arizona[Miranda v. Arizona] (1966). However, with the arrival of Chief Justice Warren Burger and Justices Harry A. Blackmun, Lewis F. Powell, Jr., and William H. Rehnquist between 1969 and 1971, White became a crucial swing vote and was assigned significant opinions. He retained this pivotal role when Rehnquist replaced Burger as chief justice. He was often viewed as a judicial conservative but differed sufficiently from conservatives such as Burger, Rehnquist, Powell, and Antonin Scalia to be difficult to characterize. For instance, White’s pro-national stance on federalism issues, pro-civil-rights position in voting rights and reapportionment cases involving racial minorities, and pro-labor views are some of the positions that served to distinguish him from the conservatives.

Legacy

White played a major role in the development of the Court’s jurisprudence with respect to media law, the establishment of a good faith exception to the exclusionary rule, and the Court’s refusal to place constitutional limits on statutes categorizing people on the basis of their sexual preferences. He authored opinions for majorities or pluralities in several cases, rejecting claims by news organizations that they deserved special protection given their important role in informing the public, including Branzburg v. Hayes (1972)[case]Branzburg v. Hayes[Branzburg v. Hayes], In re Pappas (1972)[case]Pappas, In re[Pappas, In re], United States v. Caldwell[case]Caldwell, United States v.[Caldwell, United States v.] (1972), Herbert v. Lando[case]Herbert v. Lando[Herbert v. Lando] (1979), Zurcher v. The Stanford Daily[case]Zurcher v. The Stanford Daily[Zurcher v. the Stanford Daily] (1978), and Cohen v. Cowles Media Co.[case]Cohen v. Cowles Media Co.[Cohen v. Cowles Media Co.] (1991). White enjoyed less success in influencing the Court’s defamation jurisprudence. He joined the majority in New York Times Co. v. Sullivan[case]New York Times Co. v. Sullivan[New York Times Co. v. Sullivan] (1964), the font of many of the constitutional protections limiting defamation actions, but for the remainder of his career sought to limit Sullivan’s implications, objecting to the special constitutional protections for defamation defendants developed in succeeding cases, such as Gertz v. Robert Welch[case]Gertz v. Robert Welch[Gertz v. Robert Welch] (1974).

Byron R. White

(Photograph by Joseph Bailey, National Geographic Society, Courtesy the Supreme Court of the United States)

White was dissatisfied with the breadth of the Court’s exclusionary rule, which prevented the use of any evidence obtained in violation of a criminal defendant’s constitutional rights. He eventually convinced his colleagues to adopt a good faith exceptionGood faith exception to the exclusionary rule, which allowed the introduction of evidence obtained in violation of a defendant’s Fourth Amendment rights if the law enforcement officers acted in reasonable reliance on a search warrant. White announced this good faith exception in his opinion for the Court in United States v. Leon[case]Leon, United States v.[Leon, United States v.] (1984). He also authored the opinion for the five-justice majority in Bowers v. Hardwick[case]Bowers v. Hardwick[Bowers v. Hardwick] (1986), which held that the Constitution did not prohibit states from criminalizing sodomy. The case was viewed as establishing the principle that laws classifying people based on their sexual preferences should receive little judicial scrutiny.

Major Dissents

Two of White’s most noteworthy dissents were in Immigration and Naturalization Service v. Chadha[case]Immigration and Naturalization Service v. Chadha[Immigration and Naturalization Service v. Chadha] (1983) and Roe v. Wade[case]Roe v. Wade[Roe v. Wade](1973). In Chadha, White argued that the majority erred in striking down the legislative veto, the use of congressional resolutions to prevent an administrative regulation from taking effect. White’s Chadha dissent reflected his broader view that Congress and the president were entitled to substantial leeway in structuring the relationships between the three branches of the federal government and, therefore, that separation of powers challenges to statutes should rarely be upheld. White dissented from Roe, in which the Court decided that some restrictions of women’s ability to obtain abortions violated their constitutional right of privacy. After Roe, White regularly dissented from decisions that voided state laws limiting women’s ability to terminate their pregnancies. White viewed Roe not only as wrong but also as an illegitimate judicial usurpation of power.

Further Reading
  • Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
  • Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.
  • Hutchinson, Dennis J. The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. New York: Free Press, 1998.
  • Italia, Bob. Byron White. Edina, Minn.: Abdo & Daughers, 1992.
  • Schwartz, Bernard. Super Chief, Earl Warren and His Supreme Court: A Judicial Biography. New York: New York University Press, 1983.
  • Starr, Kenneth. “Justice Byron R. White: The Last New Dealer.” Yale Law Journal 103, no. 1 (October, 1993): 37-41.
  • Urofsky, Melvin I. The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2001.
  • Yarbrough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2000.

Bowers v. Hardwick

Branzburg v. Hayes

Exclusionary rule

Gay and lesbian rights

Immigration and Naturalization Service v. Chadha

Leon, United States v.

Privacy, right to

Roe v. Wade

Separation of powers

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