denver asked him when his intense distaste for the press began, he replied in 1938. in new york. the answer immediate to be on pat, i think. distortion would disturb anyone, but white even disliked accurate reporting. if it made him too simple or too noble. interesting, from the colorado silver and gold to the new york was all about heroes, courageous fights against long odds. achievements and manly triumphs over lesser men. men who lack discipline, inadequate stamina, or weak conviction. think of how grantlan rice lionized the four horsemen of notre dame or red grange, the orange galloping ghost, the

wheatonized man. white emerged before the appetite had been slicked or on the gridiron the diamond, or even the golf course. in 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, contradicted every reflex and conviction that he had developed as a young man in wellington. he was naturally redicent, generally 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 many college so soon and so quickly set him apart, made his achievements anticipated and applauded and forced him to live

up to the reputation he did not like, did not want, and could not shake. wellington was a tightly knit community, and everyone was in hard times. one of his childhood friends reported m local orl history in the winter the eastern sky was cold, bleak, and empty, and sometimes you wondered if you had already died. white later said that by the standards of today we were all quite poor, although he didn't necessarily feel poor because everybody was more or less the same. everybody worked for a living. everybody. everybody. between that world and the cheese where i headlines and mock heroism must have been a shock to the system for him.

he and his brother preceded him as student body president at the university of colorado as a roads scholar had no doubt but grounded their values. asked why they held this or that conviction sam white would say simply, wlerned 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 even his favorite teacher well into her 80s. once world war ii ended, white discovered stateside that the press had not forgotten him. he had served with distinction with special admiral burke's staff who was awarded the bronze star. he provided intelligence analysis that was critical. he was successful at the battle in 1944. burke later wrote that white's performance on the u.s.s. bunker

hill was burning at sea represented the epitomy of courage, physical strength, and selflessness in a crisis. 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, yet his past was never far away. white finished his term, and then the chief justice gave hum a formal framed photograph of himself to commemorate the term and inscribed byron whizzer white, his future promises to be as brilliant as his past. white then face aid 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 mary ann lloyd stearns, daughter of the president of the university of colorado, in 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, anti-trust, labor law, and on to tax and litigation including complex anti-trust cases and simple one-day trials. his name rarely appeared in the public print, although he devoted an enormous amount of time to a wide variety of charitable activities. a registered democrat he denied

constant invitations for public office, and devideo his work to the grassroots level. he once confided to the friend that he thought he could get elected to public office once. too committed to his convictions, often too stubborn to compromise and to disinclined to accommodate the press, he knew he was better placed behind the scenes than capitalizing on his early fame in 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. a senator was not well known in the west. his voting record on agricultural issues did not endear him to those whose livelihoods depended on generous federal policies governing crop prices. 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 p.t. officers in the south

pacific. accepting the challenge, white helped kennedy make a respectable showing 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 twelter 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 front line officers m department of justice. white finished the task and one distinguished legal scholar declared it was the most brilliantly staffed department we had seen in a long time. the quality of personnel was a vision of public service that

would have done anyone proud. in addition to making staffing decisions, he was responsible for supervising the vetting for more than 100 judges nominated during the administration's first year. he received national recognition during the freedom writers crisis in may of 1961 when he organized and directed an ad hock contention of here owe ebbingic 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 wright white relished all of the work that he did in the department of justice. when robert kennedy was skon instantly advising his brother, he was de facto attorney general. the work was important to public service, and it was like his private practice, teamwork with hand-picked lieutenants who he had known for some time.

maybe through kicks through the law school. almost all were of the same generation, veterans and military service and despite the pressure of work, it led to two attacks, white would later say that the deputy's job was the most satisfying work of my life. suddenly after 14 months light manipulating struck. the judge retired from the court after a nervous breakdown. within weeks president kennedy nominated white to succeed him. at first white was genuinely indifferent about the appointment and told he was on the short list by an assistant attorney general, white said, i think the president can do much better than that. when the president learned of white's reluctance, he was delight. another plus in his paper. he is the ideal new frontier

judge. more is revealed by the statement than the president's pension for irony. on a substantive level, the president and his closest adds az viesors sought judges as secondary actors at best, and there are on two bonuses to the nomination. symbolically white was the new frontier personfied. 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 nominee. 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 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 legislating power is not vested in the supreme court. it is vested in the congress, and i feel the major instrument for change to 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 cleaved to the view he expressed 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 1,300 opinions. 495 opinions of the court, 249

concurring opinions, and 572 descents. imposing as they are, numbers are hard will you the measure of his contribution to the operation of the institution. in 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 in rigorous snanding of the court's precedent baring on the question, but also expressed his sense of the tactical 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 is probably best known for

his work in field's critical to the economy, but unworthy of splashy headlines and television. anti-trust law, tribal sovereignty, water rights, federal jurisdiction. the general public, he will probably be remembered for two biting disents early in his career and one dismissive majority position later many his career. when byron white assumed judicial office in april of 1962 the supreme court was at the threshold of a revolution m constitutional definition of criminal justice. one no less sweeping or controversial than the constitutional dismantling of racial segregation in the previous decade. one of his first opinions, many of the, was to disent from a opinion to validate 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 in the 14th amendment. white wrote that the majority of the case was writing into the constitution its own abstract notion of how to best handle the mark ticks problem displacing the expert understanding of either the states or the congress. the early disent was an overture to his first famous opinion, another disent, 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, a rapist, or other criminal to the streets and to the environment which produced

him. to real estate pete his crime whenever he pleases. there is a loss to human dignity. less than a year later, he posted his most searing opinion in roe versus wade. the opinion forever cast him on the dark side in the minds of liberal scholars and opinion makers. the language of the opinion comes close to accusing majority of illegitimate si. i find nothing in the language or history of the constitution to support the court's judgment. it invests that right with sufficient substance to over ride most existing state abortion statutes. the up shot 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 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 improvidence and extrav gantt exercise of the power of 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 hardway in 1946. 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 regulations of sexual conduct in the case law said to be relevant, white concluded bluntly, against this background to claim that a right to engage in such context -- conduct is deeply rooted in this nation's

history and tradition or implicit in the concept of liberty is, at best, faciscious. scholars left and right criticized the opinion, as much for its concluding tone as for its turse analysis. the decision was overruled in 2003. another passage in the opinion, which many credit inc.s elect to ignore contains his deep seeded -- first expressed in his disent in robinson in california. now almost over a century later he was still sounding the alarm. nor are we incleaned take a more expansive skroou view to discover new fundamental writes embedded in the due process law. the court is most vulnerable and comes nearest to illegitimate si when it deals with judge-made constitutional law having little or no cognizable roots in the text or design of their

constitution. this was demonstrated by the executive and the court in the 1930s which resulted in the reput yags of much of the substantive loss that the court had placed on the due process cause of the fifth 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 deemed to be fundamental. otherwise, the judiciary takes to its ilk govrping the country without express constitutional authority. the claimed right pressed on us falls short of overcoming this. unlike so many current supreme court opinions, the words are absolutely authentic to the author. down to the ice hockey metaphor often used to evoke the constitutional and political conflict between president frankly d. roosevelt and the

supreme court over the constitutionality of the new deal, 1937. the dikz should not distract. first, the legitimacy of judicial and the 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 a concern what 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. byron white once remarked his life-long friend here in denver,

judges have an exaggerated view of their role in our policy. justice white's conception of w his role was different. from beginning to end, he saw the appropriate limits of his opposition more readily than its dramatic possibility. he knew well that particular historical contingencies have placed him on the court and the institution was bigger than one person. he believed in law, both as an author th authoritative expression of will through the legitmal organs of government and essential to a free society. unlike many in his era, he did not view the courts as first among equal in law making. those directly responsibility for the electorate, be their town counsels or legislatures bore the first burden in

remadeiating the conflicting desires of the community. accordingly, the first opposition of the courts was to facilitate the judgments and not question them as a matter of habit, sentiment or impulse. in an age when cynicism toward government became endemic, he believed in the good falth of police officers, school boards, local officials, juries and administrators charged with the public trust. the confidence could be broken, but he never expected or demanded

he never achieved the stardom of public recognition that he had received earlier. not to be sought another 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 joined with an intense distaste that remained with him for the rest of his life the media speculation of a young man. the passage is telling for sure. it reveals much more about the population notions of the supreme court than it does about byron white. the decade he joined the court was a decade that produced celebrities either for what they did or because of how they fashioned themselves for the public and polished their image for the press.

white had developed an early allergy to stardom and when asked in retirement because his finalyingacy would be, he replied, i don't have a final legacy, i shouldn't. as one of his former clerks later observed, it was clearly very important to white. this being his own person and not worrying about his place in history was. he recognized that being a justice who believed 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 ambiguety and inconsistency is one of constant questioning to new situations in light of new experiences and with new consequences. the most dreary aspects of his retirement decision were the empty spectiulation made about s

liberalism, as the last connective tissue to john f. kennedy and his optimism about the capacity of government that so energized the '60s, he seemed to be a paradix, declining to be a full member of the revolution. there are two flaws i think in this view. first, remember kennedy liberalism in the early 1960s was tough on crime, tough on compnists and committed to strong national power. to the extent that either kennedy or white thought there was little daylight between them. second, as liberalism developed in the 1960s, the initial emphasize 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 pl particularly under the voting rights act of 1965. in that area, the constitution and congress were at one, but as the 1960s wore on in the individu individuals squeezed more rights out of the open language of the due process clauses, he balked. there was little support and historical guidance. the lessons of 1967 haunted him. whatever the nature of his liberalism, what were his roots? here again, several theory ares on author. one said he was understanding of the power. the new deal was a sprawling political movement, not a single stable philosophical construct.

with so much room in between, the theiry has very little explanatory power. another view claims that white became enhammered at yale law school with a theory at the time he was in school, emphasizing policy at the expense of former rules and categories. if you carefully read his opinions, you will find numerous appeals for formal structures and routine efforts to clarify the rules so people know where they stand. anyone who worked so hard to clarify the law could hardly be cynical about its foundation. the fine al theory not often pressed but necessary to consider are that his views were shaped by the west. there's no doubt he loved this part of the country. he returned annually to ski in the winter and in the summer, to trowel the waters of the flat

basin. as they have written, the west holds a powerful grasp on the imagination and affection of its tenets. empty arid land produces vivid color and is rife to opportunity and danger. passion for place does not translate into philosophical contradicts. they point to his physical vigor, self reliance, and his extraordinary work ethic. and his unadorned modesty. i would agree he bore all of those traits. but not because he grew up in the shadow of the medicine bowl mountains. indeed, i think he could have been the same man had he grown up when he did in ougaudubon ij where his uncle lived and practiced law. small, rural, agriculturally

dependent and in poverty, but the whites who remained in audubon when they moved west, manifested the same traits described of 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 rule of the court that white forged from his own experiences now seemed a relic of another era. a curious acroacronym. the current members of the court on the left and right expand the powers. t texturism, living

constitutionalism, and so on. on both sides, policy of preference seemed to bubble dangerly close to the surface. as byron white retired, they have invalidated more than 50 acts of congress, more than twice the number of the courts of the 1920s and the 1930s. judicial restraint is dead and byron white is gone, and largely forgotten. a pruitt of self effacement is not enduring glory. he made a number of decisions that shaped the way we now view him. to be his own man and not part of a block or a negotiating team. he treats his job very pragmatically and not as an economic seminar, and above all,