energized itself quickly, the national guard was mobilized and texas rangers came to town also. and the town was put under martial law in a brief, ugly episode at a time when the town was doing well and many people had new jobs and there was new money and new prosperity, so it was a tragic thing for beaumont in a time of growth and development. coming up next on this big game weekend, university of chicago law professor dennis hutch chinson discusses the life of justice byron white. before his appointment in 1962, he was a college and professional football player, earning a gate deal of national media attention in the early

20th century. mr. hutchinson looks at how byron white shaped the courts. >> thank you for that round of applause, it's nice to be at home. i grew up in colorado and i have been in exile for the last 25 years. >> bring ron white slipped out of the department of justice building at a nearby restaurant. after the sandwiches, the coffee was poured, the waitress looked at him and said hey, aren't you whizzer white? white took a sip of coffee, and

very slowly in a soft voice said i was. f. scott fitzgerald famously said there are no second acts in american lives, but i would guess there's a time when byron white -- white was constantly framed in the public eye by his headline making first act, an act so to speak that made him a nationwide household name while he was still a teenager, but which penalized a the small young man with expectations he could not foresee, did not wish and sometimes could not meet. but we're already ahead of the game. byron raymond white was born in ft. collins, colorado, but he grew up 11 miles away in wilmington, population 500 at the time.

his father managed a lumberyard. wellington's economy was dominated by sugar beets, a crop demanding attention constantly and back breaking work. both white and his older brother clayton worked beet fields after school and during the summer from the time they could wield a hoe. winters were harsh. spring brought strong winds off the front range. summers were hot and dry. character was shaped in the relentless competition between the land and the elements. self-reliance was not an abstraction. by graduating first in his class from the tiny local high school, like his brother before him, byron white earned a full tuition scholarship to the university of colorado. there, he was a star in three sports. football, basketball, and baseball. president of the student body ify bait -- phi beta kappa and a

rhodes scholar. his performance during his senior year is still statistically one of the most impressive in the history of intercollegiate football. it was capped by all america honors and brilliant play in the cotton bowl. so great was the press interest in the young student athlete, that the new york basketball writers association created the first national invitational basketball tournament largely as a showcase for white and his teammates. white delayed his matriculation at oxford to accept the highest salary ever offered to a player in the national football league, $15,800. this was pre-tv, pre-rosell. following the 1938 season, he spent two terms at oxford studying law but he returned home when world war ii broke out in europe in september 1939.

he spent a year at yale law school and won the prize for highest grades in the first year, then took a leave of absence in each of the two succeeding fall terms to continue to play professional football. he was thus able to finance his legal education, help support the medical education of his brother, and provide a retirement nest egg for his parents. the onset of world war ii, white tried to enlist in the marine corps to become a fighter pilot but failed the color blindness test and had to settle for naval intelligence. with the war, byron white was allowed to drop out of the headlines. but for a half decade, from the spring of 1936, he was a household name. from the fall of 1937, nationally. in an era when sports writers created dramatic athletic heros, white was almost too good to be true. small town boy, three sport star, student body president, and eventually a road scholar. his only handicap was his location.

football was still a college sport focused on the east coast. all the media there viewed trans-allegheny competition as suspect with the exception of a small college in indiana. one of the prominent sports writers of the day ventured in country to watch white play and memorialized him with a gripping account of a memorable play in a bitter rivalry. white returned a punt 97 yards for a touchdown, zigging and zagging the field and leaving spectators breathless. colorado won 17-7. although, one newspaper headline accurately stated, white 17, utah 7. white's national fame was secured by the column published in more than 400 newspapers. one of the problems, though, is

it went national with a memorable nickname, which he quickly came to loathe. here's a sample of the column. the recipe for an all-america back field man as endorsed by the leading press box chefs reads something like this. take equal parts of speed, power, and savvy. mix well with ability to kick and pass. add a generous pinch of endurance, serve on any field. if that's right, then byron whizzer white of colorado deserves the gold watch, the parchment scroll, the double-breasted sweater and all the other items of a man on an all-america team comes in for. within days, newspapers from chicago to new york were heralding the new galloping ghost of the rockies, the whizzing man. white's instant national fame and colorado's record yielded a birth in the second cotton bowl, but eastern writers wanted more,

so the nit was established. many madison square garden, slow casing byron white basketball star. colorado was outmatched. but deeper wounds were inflicted in the lop-sided loss in the finale. new york sports writers treated white like a rural chicken to be plucked. they made up quotes about interviews. they distorted his views and even broke into his hotel room to interview his roommates. the experience left white, who was never comfortable speaking in public, bitter. years later when a friend in denver asked him when his intense distaste for the press began, he replied, in 1938 in new york. the answer needs to be unpacked, i think. misquotation and distortion would disturb anyone, but white even disliked accurate reporting if it made him too central or too noble.

unfortunately for him, sports writing from the colorado silver and gold to the new york broad sheets was all about heros, courageous fights against long odds, and achievements and manly triumphs over lesser men. think of how grant rice lionized the four horsemen of notre dame. white emerged the next decade after the taste had been established but for the appetite had been slate. for morality played on the gridiron, the diamond, or even the golf course. many white's day, even a horse could be called the horse that came from nothing on his own, but courage and a will to win. for byron white, the bromance of the sports pages, at least when they capitalized on him, contradictions every reflex he had developed as a young man. he was naturally reticent,

genuinely modest, and worked hard to support his family and improve himself. he sought no recognition, shied when it came, and deflected sustained attention. fame and college so soon and so quickly set him apart, made his achievements anticipated and applauded and forced him to live up to a reputation he did not like, did not want, and could not shake. wellington was a tightly knit place where everyone was in hard times. the outlook was so stark that they all had to pull together.

one of his childhood friends reported in the local oral history, in the winter, the eastern sky was cold, bleak, and empty, and sometimes you wondered if you'd already died. white later told a journalist, i suppose you could say that by the standards of today, we were all quite poor. although, he didn't necessarily feel poor because everyone was more or less the same. everybody worked for a living. everybody, everybody. the dissonance between that world and the art of cheesy headlines and mock heroism must have been a shock to the system for him. he and his brother had no doubt what grounded their values. asked why they held this or that conviction, sam white would say simply, we learned that in wellington. as if it were a course in ethics as well as a location.

in many respects, byron white was never far from wellington. even after his parents retired to fort collins, he stayed in touch with former classmates and his favorite teacher well into his 80s. once world war ii ended, white discovered the press had not forgotten him. he had served with distinction and was awarded a bronze star. he provided intelligence analysis that was critical to the success of the battle in 1944. it was later written that white's performance when the uss bunker hill was burning at sea represented the epitome of courage and selflessness in a crisis. the press wanted to know whether he would play professional football again. his parents were hounded by the wire services for an answer. he answered the question himself by enrolling in yale law school and announcing he was threw with football.

after graduating first in his class, he cleared for chief vincent. yet his past was never far away. when white finished his term, the chief justice gave him a formal framed photograph of himself to commemorate the term and inscribed, to byron whizzer white whose future promises to be as brilliant as his past. when the courtship ended, white faced a choice of where to practice law. many of his fellow clerks stayed in washington, but the pull of home and family was too strong, and he returned to colorado to practice in denver. besides, denver suggested but did not promise that he would be able, as he told a fellow clerk, to keep my name out of the god damn newspapers. his marriage to marion lloyd sterns, the daughter of the president of the university of colorado, meant that all the

extended family was within a 50 mile radius of denver as were a wealth of friends and the favorite past times of his youth, especially fly fishing and hiking in the foothills. for more than a decade, white enjoyed a widely varied legal practice ranging from real estate to corporate work, anti-trust, and labor law and on to tax and litigation, including complex anti-trust laws and simple one-day trials. his name rarely appeared in the public prints, although he devoted an enormous amount of time to a wide variety of charitable organizations. a registered democrat, he declined constant invitations to stand for public office. he confined his political aspirations to the grass roots level. he once confided to a friend that he thought he could get elected to office once. too committed to his convictions, often too stubborn

to compromise, and too disinclined to talk to the press, he knew he was better placed behind the scenes than capitalizing on his early fame the public. when senator john f. kennedy decided in 1959 to seek the democratic nomination for president, his staff solicited white to manage the campaign in colorado. the senator was not well known the west. his voting record on agricultural and reclamation issues did not endear him to those whose livelihoods depended on general public policies. white had known kennedy first in england when kennedy's father was minister to the court of st. james and later when they were both pt officers in the south pacific. accepting the challenge, white helped kennedy make a respectable showing at the state party convention. at the national convention in los angeles, white became close to robert f. kennedy. when the senator secured the nomination, white was named national chair for citizens for kennedy/johnson. as a practical matter, the

position provided robert kennedy with a daily opportunity to con summit with white for advise is on campaign tactics and strategy as well as a wealth of personnel judgments required by a national campaign. after senator kennedy was elected, white was named deputy attorney general. his first his first task was to recruit assistants attorney general who would be the front-line officers. when white finished the task, one distinguished legal scholar declared it was the most brilliantly staffed department we had seen in a long time. the quality of personnel spoke a vision of public service that would have done anyone proud. in addition to making staffing decisions, he was responsible for supervising the vetting of more than 100 judges nominated during the administration's first year. he received national recognition during the freedom writer's crisis when he organized and directed an ad hoc contention of

heroic federal officers to protect dr. martin luther king and his supporters when their lives were threatened for protesting racial segregation in alabama. it was a searing experience for white in his first taste of the ugly, smug brutally of southern racism and jim grow. byron white relished all of the work he did in the department of justice. with robert kennedy constantly advising his brother, white was de facto attorney general. the work was important, public service, and it was like his private practice team work with hand-picked lieutenants he had known for some time. almost all were of the same generation, veterans of military service, and despite the pressure of work, which led to two ulcer attacks, white would later say that the deputy's job was the most satisfying work of my life.

suddenly, after 14 months, lightning struck. justice charles whitaker had a nervous breakdown, retired from the court. within weeks, president kennedy nominated white to succeed him. at first, white was genuinely indifferent about the appointment. told he was on a short list, by an assistant attorney general, white said, oh, i think the president can do much better than that. when the president learned of wait's reluctance, he was delighted. he's the ideal new frontier judge. more is revealed by the statement in the president's statement. on a substantive level, the president and most of his closest advisers saw judges as very secondary actors in the

political system at best. there were two bonuses to the nomination. symbolically, white was the new frontier personified. young, physically vigorous, brilliant, committed to family and public service. politically, confirmation was a snap. as deputy, white had charmed the senate judiciary committee when he presented his judicial nominees. his confirmation hearing lasted only 90 minutes, and he was confirmed by voice vote that afternoon. compare and contrast as we say in higher education. the hearing produced a telling moment to those paying attention. a senator asked white for the supreme court legislates. he replied, i think it's clear under the constitution that the legislative power is not vested in the supreme court. it is vested in the congress. and i feel the major instrument for change of laws in this country is the congress of the united states. the business of the congress is that of changing the law. afterward, a reporter asked white to define the constitutional role of the

court. his reply was chilly. to decide cases. a bystander later recalled the statement was both a brushoff and a statement of philosophy. you could tell by the way he said it that it carried a fundamental belief for him. byron white cleaves to the view he had at the threshold of his career, which spanned 31 years, one of the longest in the history of the court. he served with 20 justices, including three chief justices. during his career, he wrote more than 1300 opinions, 495 opinions of the court, 249 concurring opinions, and 572 dissents. in posing as they are, numbers are hardly the measure of his contribution to the operation of the institution. at white's memorial service, the

chief justice rehnquist klain -- explained, given the force of his powerful intellect, his breadth of experience, and his institutional memory, justice white continuously played a role in the weekly conference. his comments there reflected not only his meticulous preparation and rigorous understanding of the court precedent bearing on the question, but also pivotally expressed the practical effect of a given decision. for those not familiar with the chief justice's testimony, which was echoed by several other justices, white's mark on the court will always be measured by what hard evidence remains, the opinions he wrote. to lawyers who followed the court, white was probably best known for his work in fields critical to the economy but unworthy of flashy headlines. anti-trust law, labor law, scope of federal pre-emption, triable sovereignty, water rights, federal jurisdiction. to the general public, he will probably be remembered for two

biting dissents earlier in his career and one dismissive majority opinion later in his career. when byron white assumed judicial office in april of 1962, the supreme court was at threshold of a revolution in the constitution of criminal justice. one no less sweeping or controversial than the constitutional dismantling of racial segregation in the previous decade. the appointee of a liberal president was expected to get on the bandwagon, but white kept his own council. one of his first opinions, in fact, was a dissent from a decision invalidated criminal punishment for habitual use of drugs, which the majority of the court thought penalized a status, not an act. in violation of the due process clause of the united states constitution. the case was called robinson versus california. white wrote that the majority in the case was writing into the constitution its own abstract notions of how to best handle the narcotics problem, display placing the expert understanding

of either the states or the constitution. the early dissent was an overture to his first famous opinion, another dissent, in a case now known to every american with access to a television set, miranda versus arizona. white viewed the majority opinion as inconsistent with text, precedent, and sound policy. his opinion closed on a raw note. widely quoted at the time. in some unknown number of cases, the court's rule will return a killer, rapist, or other criminal to the streets and to the environment which produced him, to repeat his crime wherever it pleases him. as a consequence, there will not be a gain but a loss in human dignity. less than a decade later, white published his most searing opinion, a dissent in roe v. wade. the language of the opinion

comes close to accusing the majority of illegitimacy. i find nothing in the language of history of the constitution to support the court's judgment. the court simply fashions and announces a new constitutional right for pregnant mothers with scarcely any reasonable authority for its action invest that right with sufficient substance to override most existing state abortion statutes. the upshot is that the people and the legislatures of 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of a fetus on the one hand against a spectrum of possible impacts on the mother on the other hand. as an exercise in raw judicial power, the court perhaps has the authority to do what it does today, but my view, its judgment is improvident and extravagant

exercise of the power of judicial review that the constitution extends to this court. the final opinion for which byron white is most unpopularly or popularly known is in 1986. speaking for a majority, he declined to read into the due process clause, a constitutional right for adults to engage in homosexual activity in private. after reviewing the history of state regulation of sexual conduct in the case laws said to be relevant, white said, the against this background, the right to engage in such conduct is deeply rooted in this nation's history and tradition or implicit in the concept of order liberty is facetious. scholars left and right criticized the opinion as much for its concluding tone as for its terse analysis and result. the decision was overruled in 2003.

another passage in the opinion, which many critics elect to ignore, contains justice white's deep-seeded anxiety over the breadth of the courts's role, first expressed in his dissent in robinson versus california. now, almost a quarter century later, he was still sounding the alarm. nor are we inclined to take a more expansive view of our authority to discover new fundamental rights in the due process clause. the court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the text or design of the constitution. that this is so painfully demonstrated by the face-off between the executive and the court in the 1930s, which resulted in the repudiation of much of the substantive gloss that the court had placed on the

due process clauses of the 5th and 14th amendments. there should be, therefore, great resistance to expand the reach of those clauses, particularly if it requires redefining the category of rights deemed to be fundamental. otherwise, the judiciary takes to itself further authority to govern the country without express constitutional authority. unlike so many current supreme court opinions, the words are absolutely authentic to the author down to the ice hockey metaphor awkwardly used to evoke the constitution and political conflict between president franklin d. roosevelt and the supreme court over the new deal in 1937. it should not distract from two points. first, the legitimacy of judicial review and the proper scope of its application was central to the case. white worried about point in case after case from abortion to the death penalty to campaign financing to the legislative

veto and so on. second, white mentioned without elaborating a concern with some political scientist and lawyers have been expressing for years. when the supreme court tests the strength of its legitimacy and not only threaten its principle, but jeopardized its own political authority. the risk is retaliation from other branches or worse, defiance, subtle or brazen, by the public. byron white once remarked to his lifelong friend here in denver, judges have an exaggerated view of their role in our policy. justice white's conception of his role was almost intuitive. from beginning to end, he saw the appropriate limits of his position more readily than its dramatic possibilities.

he knew well that particular historical contingencies had placed him on the court and that the institution was bigger than any one person. he believed in law, both as an authoritative expression of the social will, the authoritarian federal government. unlike many in his era, he did not view the courts as first among equals in law making. those directly responsible to the electorate, whether they be town councils or legislators, were the first burden in the ultimate responsibility for meddating the often conflicts desires of the community.