deeper wounds were inflicted than the lopsided loss and the finale. new york sportswriters treated white like a rural chicken to be plucked. they made up quotes about interviews. they distorted his views. 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 dealing with the press, embittered. years later, when a friend in denver asked him when his days intense dislike for the press began, he replied, "in 1938 in new york." the answer needs to be unpacked i think. mythical 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 heroes,

courageous fights against long odds, incongruous achievements and manly achievements over lesser men, men who lacked discipline, inadequate stamina or weak conviction. think of how the four horsemen of notre dame were lionized or red grange, the original galloping ghost, the wheaton ice man. white emerged in the next decade after the taste had been established but before the appetite had been slated for morality plays on the gridiron, the diamond, or even the golf course. in white's day, even a horse could be called the horatio alger of the turf, the horse that came from nothing on his own, but courage and a will to win. for byron white, the romance 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 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 that you could say

that by the standards of today we were all quite poor, although you 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 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 was 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 and even his favorite teacher. once world war ii ended, white

discovered stateside that the press had not forgotten him. he had served the distinction a specialist on the admiral arleigh burke's staff and awarded a bronze star. he provided intelligence analysis that was critical to the success of the battle of the gulf in 1944. burke later wrote that white's performance as the "uss bunker hill" was burning at sea 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 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 clerkship 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 goddamn newspapers. his marriage to miriam 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 friends and the favorite

pastimes 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, labor law, and on to tax litigation, including complex antitrust cases 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 activities. a registered democrat, he declined constant invitations to 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 placed behind the scenes than capitalizing on his early fame in 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 in the west, and his voting record on agricultural and reclamation issues did not endear him to those whose livelihoods depended on generous federal policies governing crop prices and water. white had known kennedy first 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 show in 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 of 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 national campaign.

after senator kennedy was elected, white was named deputy attorney general. his first task was to recruit assistants attorney general who would be the frontline officers in the department of justice. when white finished the task, one distinguished legal scholar declared, it was the most brilliantly staffed department we had seen in a long time. and the quality of personnel bespoke 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 riders crisis in may of 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 and 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, teamwork with handpicked lieutenants who he had known for some time, many through connections with yale 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 deputy's job was the most satisfying work of my life. and 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 diffident about the appointment. told he was on the short list by an assistant attorney general, white said, "well, i think the president could 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 than the president's penchant for irony. on a substantive level, the president and closest advisers saw judges as very secondary actors in the political system at best. there are 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 whether the supreme court legislates. he replied, "i think it is 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 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 the 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 cleved to the view he expressed at the threshold of his career, would span 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 1,300 opinions, 495 opinions of the court, 249 concurring opinions, and 572 dissents. imposing as they are, numbers are hardly the measure of his contribution to the operation of the institution. at white's memorial service, chief justice rehnquist explained, "given the force of his powerful intellect, his breadth of experience and his institutional memory, justice white consistently played a major role in the court's discussion of cases at its weekly conferences. his comments there reflected not only his meticulous preparation

and rigorous understanding of the court precedent bearing on the question but also expressed his sense of the practical event 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 and television time. antitrust law. labor law. scope of federal preemption. primal 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 of 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 desegregation 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 on the 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 the texts, 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 killer to the streets and the environment which produced him to repeat his crime whenever 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 or dissent in roe versus wade, the opinion forever casting on the dark side in the minds of liberal scholars and opinion makers. the language of the opinion comes close to accusing the majority of illegitimacy. "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 and with scarcely any reason or 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 the fetus on the one hand against a spectrum of possible impacts of 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 in my view, its judgment is an improvident and extravagant exercise of the powerful judicial review that the constitution extends to this court." the final opinion for which byron white is most popularly or

unpopularly known is bowers versus harwood in 1986. speaking for a bare majority, he declined to read into the new process clause a constitutional right for adults to engage in homosexual activity in private. after reviewing the history of state regulation of sexual conduct and 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 order liberty is, at best, facetious." scholars left and right criticized the opinion as much as 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 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 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 as 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 laws 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 substantive reach of those clauses, particularly if it requires redefining the category of rights aimed to be fundamental. otherwise, the judiciary takes to itself further authority to govern the country without

express constitutional authority. the claim pressed on us today falls far short of overcoming this assistance." 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 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 the primary 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 that some political scientists and lawyers have been expressing for years -- when the supreme court tests the tinsel strength of its

legitimacy, it not only threatens principle, but it jeopardizes its own political authority. the risk is retaliation from other branches or, worse, defiance, subtle or brazen, by the public. defiance, subtle or brazen by the public. byron once remarked to his lifelong friend over here in denver, judges have an exaggerated view of their role in our politics. justice white's conception of his role was almost intuitive, bred in the bone rather than created or fully asserted. 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 nbigger tha any one person.

he believed in law, both as an authoritative expression of the will through the legitimate organs of government and central to the vitality of a free society. unlike many in his era, he did not view the courts as first among equals in law-making. those directly responsible to the electorate, be they town councils or legislatures, were the first burden and ultimate responsibility for mediating the often conflicting desires of the community. accordingly, the first obligation of courts was to facilitate those judgments and not the question them as a matter of habit, sentiment or impulse. and in an age when cynicism toward government became endemic, justice white believed in the good faith of police officers, school boards, officials, jury and administrators charged with the public trust. to be sure, the assumption was rebuttal, the confidence could be broken, but he never expected

or demanded perfection for he well understood that neither human beings nor any institutions they create could be flawless. public officials without exception were accountable under the law for transgressions, but they were allowed retractable discretion to perform their duties. when justice white died in 19929 at the age of 84, almost a decade after he had retired 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 or public recognition on the supreme court that he had received earlier, not that he sought either at any point in his life. an authentic celebrity in an era before fame became an everyday commodity, he was also the most reluctant of celebrities, viewing win tense distaste which remained with him for the rest of his life the media speculation that attended his every move as a young man. the passage is telling, to be sure. i think it reveals much more

about popular notions of the supreme court than it does about byron white. the decade he joined the court was a period that produced celebrities in robes, either because of what the court did, think earl warren, or because of how they fashioned themselves for the public and polished their image for the press, think hugo black or william o'douglas. white had developed an early allergy to stardom and knew that fame was empty. when asked at retirement what his doctrinal legacy would be, he replied i don't have a doctrinal legacy, i shouldn't. as one of his former clerks later observed, many non-ideological and non-doctrinaire was clearly very important to white, just as being his own person and not worrying about his place in history was. he recognized that, a justice who believes in a more limited constitution is not the way to gain historical notoriety. if we looked 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. the most dreary aspect of whit's retirement decision was the empty speculation made by scholars and journalists alike about his liberalism. as the last connective tissue to john f. kennedy, the new frontier, and its optimism about the capacity of government that so energized the 1960s, white seemed to be a paradox. ascending from progressive decisions to declining to be a full-throated member of the revolution and voicing skepticism about judicial power. there are two flaws, i think with this view. first, remember that kennedy in liberalism in the 1960s was tough on crime, tough on

communists and committed to strong national power. to the extend 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 in validating federal power to protect non-whites, particularly under the voting rights act of 1965. in that area the constitution and congress were at one, but as 1960s wore on and as individuals pressed to squeeze more rights out of the open-ended language of the due process clauses he balked. thereto 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, what were its roots? here again, several theories are on offer. one view is that white was the last new dealer, fully committed to a generous understanding of national power at expense of the states, but the new deal was a sprawling political move. with so much room in between, the theory has very little explanatory power. another view claims that white became enaturalored at yale law school with the realist movement, a novel theory at the time that he was in school, emphasizing policy at expense of formal rules and categories. but if you carefully read his opinions, you will find numerous appeals to formal structures and routine efforts to clarify legal rules so that people know where they stand. anyone who works so hard to

clarify the law can hardly be cynical about its foundations. a final theory, not often pressed but necessary to consider in this venue, is that 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 the platt, the hooter basin and up and down further points along the range. as was written, the west holds a powerful grasp on the imagination and affection of its denisons. empty arid land produces vivid color and is ripe with both opportunity and danger. yet passion for place does not translate into philosophical conviction. those who see white as a distinctively western justice point to his physical vigor, self-reliance, his blunt talk, his extraordinary work ethic and his unadorned modesty.

i would agree that he bore all those traits, but not because he grew up in the shadow of the medicine bow mountains and rabbit's ears range. indeed i think he could have been the sameman when he did when he grew up in and youon, iowa, where his uncle lived. the two towns shared similar profiles, small, rural, agricultural independent and impoverished but the whites who remained in audubon when byron and sam's parents moved west manifested the same traits ascribed to the justice himself. 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 era, curious anachronism. the current members of the court, on both the left and the right, urge expansive exercises of judicial power in the name of various names, texturalism, originalism, living constitutionalism and so on. and each condemns the other for lacking judicial restraint. on both sides policy preferences seem to bubble dangerously close to the surface. consider this. it says byron white retired, the supreme court has invalidated more than 50 acts of congress, more than twice the number of the inner war courts of the 192s and 1930s. judicial restraint is dead. and byron white is gone, and largely