they even broke into his hotel room to interview his roommate without identifying themselves. the experience left white, who was never comfortable speaking in public or deal with the press. embittered. 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, interwar sports writer from the colorado silver and gold to the new york broadsheets was all about heroes, courageous fights against long odds and congress achievements and manly triumphs over lesser men, men of lax discipline, inadequate stamina

or weak conviction. think of how the four horsemen of notre dame were lionized or the original galloping ghost. white emerged the next decade after the taste had been established but before the appetite had been slayed. for moralities on the gridiron, the diamond or even the golf course. in white's day, even a horse can be called the horatio alger of the turf. the horse that came from nothing on his own but a courage and a will to win. for byron white the bromance of the sports pages, at least when they capitalized on him, contradicted every reflex and conviction that he had developed as a young man in wellington. he was naturally reticent, genuinely modest and worked hard to support his family and to improve himself. he sought no recognition, shied

when it came, and deflected sustained attention. fame in 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 hamlet where everyone was in hard times and the outlook was so stark that they all had to pull together. one of his childhood friends reported in a local oral history, in the winter, the eastern sky was cold and 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 hock to the system for him. he and his brother, who preceded him as student body president at the university of colorado and as a rhodes scholar, 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 ft. collins, he stayed in touch with former classmates an even his favorite teacher well into her 80s. once world war ii ended white discovered state side that 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 latay gulf in 1944. when the u.s. bunker hill was burning at sea he represented the epitome of courage, physical strength and selflessness in a crisis. but the press wanted to know whether he would play professional football again. and his parents were hounded by the wire services for an answer. he answered the question himself by enrolling at yale law school and announcing that he was through with football. after graduating first in his class, he clerked for chief justice fred m. vincent. when white finished his term, the chief justice gave him a formal framed photograph of himself to commemorate the term and inscribe "to byron "whizzer" white whose future promises to be as brilliant as his past."

when the clerkship ended, white faced the 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 damned newspapers. his marriage to marian lloyd stearns, the daughter of the president of the university of colorado in june of 1946, meant that all his extended family were within a 50-mile radius of denver. as were a wealth of friend and a 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, antitrust an labor law and on to tax and litigation, including

complex antitrust cases and simple one-day trials. his name rarely appeared in the public print, although he devoted an's nor muss amou enor time to a wide variety of activities. a registered democrat, he declined constant invitations to stand for public office and confined his political work to the grassroots 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 accommodate the press, he knew he was better playersed behind the scenes than capitalizing on his early fame and public. the senator was not well known in the west and his voting record on agriculture issues did not endear him to those whose

livelihoods depended on generous federal policies governing crop prices and water. 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 chafr citizens for kennedy-johnson. as a practical matter, the position provided robert kennedy with a daily opportunity to consult white for advice on campaign tactics and strategy, as well as for the wealth of personnel judgments required by a nationcampaign. after senator kenn elected, white was name deputy attorney general. his first task was to recruit assistants attorney general who

would be innocent department of justice. when white finished a task one legal scholar declared it was the most brilliantly staffed department we had seen in a long time and the quality of bern el bespoke a vision of public service that would have donnie one proud. in addition to making staffing decisions he was responsiblevii than 100 judges nominated during the administration's first year. he received national recognition during the freedom writers crisis in may 1961 when he organized and directed an ad hoc contingent 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 brutality of southern racism and jim crow. byron white relished all of the work that he did in the department of justice.

with robert kennedy constantly advising his brother, white was de facto attorney general. the work was important, it was public service, and it was, like his private practice, team work with hand-picked lieutenants whom he had known for some through, many through connections with the law school. 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 deputies' job was the most satisfying work of my life. then 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 generally indifferent about the appointment, told he was on the

short list, white said, i think the president can do much better than that. when the president learned of white's reluctance, he was delighted. another plus in his favor, he's the ideal new frontier judge. more is revealed by the statement in the president's pension for irony. on a substantive level, the president and most of his closest advisors saw judges as very secondary actors in the political system. at left. and 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 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 whether the supreme court legislates. he replied, "i think it is clear under the constitution that the legislative power is not invested in the supreme court. it is invested in the congress. and i feel the major instrument for change to the 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 his statement was both a brush-off and a statement of philosophy. you could tell by the way he said it that it carried a fundamental belief for him. byron white cleaved to the view

he possessed which spans 31 years, one the longest in the history of the court. he served with 20 justices, including three chief justices. during his career he wrote more than 1,300 opinions, 495 opinions to the court, 572 dissents. imposing as they are, numbers arehardly the measure of his contribution to the institution. at white's themmial service chief justice rehnquist explained given the force of his powerful intellect, his brefadt of experience and institutional memory, justice white played e a consistent role in the discussion of cases. not only his meticulous preparation in understanding of the court precedent bearing on the question but also pittly expressed his sense of 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 follow the court white was probably best known for his work in fields critical to the economy but unworthy of splashy headlines and television time. antitrust law. labor law. scope of federal preemption. tribal sovereignty. water rights. federal jurisdiction. to the general public, he will probably be remembered for two biting dissents early in his career and one dismissive majority opinion later in his career. when byron white assumed judicial office in april 1962 the supreme court was at the threshold of a revolution in the constitutional definition 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 counsel. one of his first opinions in fact was a dissent from a decision invalidating 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 14th amendment. the case was called robinson versus california. and 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, displacing the expert understanding of either the states or the congress. 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 overreturn a killer, rapest or other criminal to the streets and the environment which produced him to repeat his crime however it pleases him. as a consequence there will not be a gain but a loss in human dignity. less than a decade later, white pub accomplished his most searing opinion, a dissent in roe versus wade. the opinion for forever cast him on the dark side in the minds of liberal scholars and opinionmakers. the language of the opinion comes close to accusing majority of ill legitimacy. "i find nothing in the language or 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 reason or authority for inn that action to overright

most existing state abortion statutes. up shot is that the people in the legislatures of 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the 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 authority to do what it does today. but my view, its judgment is an improv dent and extrav gent exercise of the power of the judicial review that the congress extends to this court. final opinion for which byron white is most popularly or unpopularly known is bowers versus hardwick in 1986. speaking for a bare 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 law said to be relevant, white concluded bluntly -- against this background, the claim that a right to engage in such conduct is deeply rooted in this nation's history and tradition, or implicit in the concept of ordered liberty is, at best, 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 message in the opinion which many critics elect to ignore contains justice white's deep-seeded anxiety over the breadth of the court's role. first expressed in his dissent in robinson and 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 embedded in

the due process clause. the court is most vulnerable and comes nearest to ill legitimacy when it deals with judge-made constitutional law having little or no cognizable root in the text of the constitution. this is -- there should be, therefore, great resistance to expand the substantive 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. the claimed right pressed on us today falls far short of overcoming this instance.

unlike some current supreme court opinions, the words are absolutely authentic to the author. down to the ice hockey metaphor. awkwardly used to evoke the constitutional and political conflict between president franklin d. roosevelt and the supreme court over the constitutionality of the new deal in 1937. the diction should not distract from two points. first, the legitimacy of judicial review and proper scope of its application was central to the case. white worried about the 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 which some political scientists and lawyers have been expressing for years. when the supreme court tests the tensele strength of its legitimacy in not only threatens principle but it jeopardizes its own political authority. the risk is retaliation from

other branches or, worse, defiance, subtle or 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 mediating the often conflicts desires of the community. accordingly, the first obligation of courts was to facilitate those judgments and not to question them as a matter of habit, sentiment or impulse. in an age with cynicism toward government became endemic, justice white believed in the good faith of police officers, school boards, local officials, juries and administrators charged with the public trust. to be sure, the assumption was rebuttal, the confidence couldn't be broken. he never expected or demanded perfection for he well understood that neither human beings or any institutions they create could be flawless. public officials were accountable under the law for

transgressions, but they were allowed discretion to perform their public duties. when justice white died in 2002 at the age of 84 almost a decade after retiring from the court, "the new york times" struggled to capture the significance of his career. his own judicial legacy remained a complex and somewhat ambiguous one. he never achieved the stardom recognition on supreme court. an authentic celebrity in an era before fame became an everyday commodity, he was the most reluctant of celebrities dealing viewing with intense distaste which remained with him the rest of his life the media strut any that he encountered in his early life. the passage is telling to be sure, i think it reveals much more about popular notion of the supreme court than it does about byron white. the decade he joined the court was a period that produced

celebrities and rogues, either because of what the court did, think earl warren, or because of how they fashion themselves for the public and publish themselves for the press. think william o. black and william doug lags. white developed an early allergy to stardom. when asked at retirement what his legacy would be, he replied i don't have a doctrinal legacy. i shouldn't. as one former clerk observed, being nonit logical and nondock drink -- very important to white just as being higgs own person and not worrying about his place in history was. he recognized that being a justice who believes in a more limited constitution is not the way to gain historical notoriety. if we look with clear eyes at white's three-decade career, what emerges is a record less of ambiguity or inconsistency than one of constant questioning, not of first principles but of their

application to new situations in light of new experiences and with new consequences. as the last connective tissue to john f. kennedy, the new frontier and optimism about the capacity of government that so energized the 1960s, white seemed to be a paradox, dissenting from progressive decisions, declining to be a full throated member of the white's revolution and voicing skepticism about judicial power. there are two flaws i think with this view, first remember that kennedy liberalism in the early 1960s was tough on crime, tough on communists and committed to strong national power. the extent that either kennedy or white thought in categorical

terms, there was little daylight between them. second, as liberalism developed in the 1960s, the initial emphasis on equal rights symbolized by the segregation decisions in 1954 became a campaign for individual rights. byron white came to the court bruised by his experience in alabama, but he served as a central figure invalidating federal power to protect nonwhites, particularly under the voting rights act of 1965. in that area, the constitution and congress were at one, but as the 1960s wore on and as individuals pressed to squeeze more rights out of the open-ended language of the new process clauses, he balked. there the court was at sea with no democratically accountable support and little historical guidance. the lessons of 1937 haunted him. whatever the nature of byron white's liberalism were his roots. here again, several theories are

unauthored. one views that white was the last new dealer committed to power at the expense of the states. the new deal was a sprawling political movement, not a single, stable, philosophical construct. in the low lags united segregationists with. the theory has very little explanatory power. another view claims that white became enamored at yale law school with the legal realist movement, a novel theory at the time he was in school emphasizing policy at the expense of formal rules and categories. if you carefully read his opinions, you'll find numerous appeals to formal structures and routine efforts to clarify legal rules so people know where they stand. anyone who works so hard to clarify the law could hardly be cynical about its foundation.

a final theory, not often pressed, but necessary to consider in this venue is byron white's complex views were shaped by the west. there is no doubt that he loved this part of the country. he returned annually to ski in the winter and in the summer to prowl the waters of points up and down the front range. as wallace stegner has written, the west holds a powerful grasp on the imagination and affections of its innocents. empty bar wren land is ripe with opportunity and danger. it doesn't translate into philosophical conviction. those who see white as a distinctively western justice point to his physical vigor, self reliance and blunt talk, extraordinary work ethic and his unadorned modesty. i would agree he bore all those traits, not because he grew up in the shadows of the mountains

and the range. indeed, i think he could have been the same man had he grown up when he did in audubon, iowa, where his uncle lived and practiced law. the two little towns shared similar profiles in the 1930s, small, rural, agriculturally dependent and impoverished. the whites who remained in audubon when byron's and sam's parents moved west, manifested the same traits described to the justices themselves. time and locale, not the 105th meridian shaped the brothers white. byron white always encouraged his children, his clerks, others to get as much experience as you can. and he meant that each new challenge would help to shape and reshape one's views. today, the pragmatic and modest approach to the role of the court that white forged from his own experiences now seems a relic of another area, curious anachronism.

the curious members of the court on both the left and the right urged expansive areas of judicial power, living constitutionalism and so on. each condemns the other for lacking judicial restraint. on both sides policy preferences seem to bubble dangerously close to the surface. consider this data. since byron white retired, the supreme court as invalidated more than 50 acts of congress, more than twice of the interwar courts of the 1920s and the 1930s. judicial restraint is dead. byron white is gone and largely forgotten. the fruit of self effacement is not enduring glory. from the beginning of his tenure on the supreou