Key Role on Court : Byron White: Color Him Constant

WASHINGTON —  When President John F. Kennedy had a chance to fill a Supreme Court vacancy 26 years ago, he turned naturally to one of the best and brightest members of his young Administration.

Byron R. White was the Bill Bradley of his generation: an all-American athlete and Rhodes scholar, an ideal blending of brains and brawn. “Whizzer” White had used his bonus as a professional football star to pay his way through Yale Law School. He became the deputy attorney general whose coolness under fire in 1961 helped to save the civil rights freedom riders from a potentially explosive confrontation in Alabama .

He “has excelled in everything he has attempted,” Kennedy said as he named White to the high court. The President praised his nominee for maintaining a “humane and understanding approach to people and to problems.”

In Pivotal Position

Kennedy might not recognize White today. On the bench, he is renowned for frequent scowls and gruff questioning. His written opinions typically are as tough as his demeanor, sometimes scornful and almost always conservative. By teaming up with Chief Justice William H. Rehnquist and President Reagan’s three nominees to the court, this appointee of the liberal J.F.K. could play a key role in forming a Reagan majority.

In his first 20 years on the court, White was viewed as a hard-line conservative on crime issues and a liberal on civil rights, but in the past few terms he has moved to the right on civil rights matters as well.

Last year he voted most often with the court’s two most conservative members, with Rehnquist in 85% of the cases and with Justice Antonin Scalia in 77% of them. He voted least often with the two most liberal members, with Justice Thurgood Marshall 46% of the time and William J. Brennan Jr. in 47% of the cases.

Supports Reagan Views

White, who will be 71 on June 8, has been a forceful and increasingly effective advocate of the Reagan view on issues the President holds dear: giving police more freedom to deal with criminal suspects, allowing religion into the public schools, cutting back on affirmative action and reversing the landmark ruling that a pregnant woman has the right to choose abortion.

Moreover, White has made it quite clear that he favors rolling back court precedents--an increasing likelihood with three Reagan appointees on the court. White dissented from the 1973 (Roe vs. Wade) decision overturning state laws against abortion, for example, and when the court reaffirmed that ruling 5 to 4 in 1986, White declared it his aim to see the decision reversed.

“I continue to believe this venture has been fundamentally misguided since its inception,” he wrote. “In my view, the time has come to recognize that Roe vs. Wade. . . departs from a proper understanding of the Constitution and to overrule it.”

The toughness that distinguishes White’s approach to the law came early to him. As a college football star in the 1930s, his coach, Frank Potts, described him as “just plain mean and ornery and tenacious. He could blast tacklers out of the way with those forearms and get away with it. He wasn’t dirty, just mean.”

It was a quality that was to endure. A former colleague of White’s in the Kennedy Administration said: “He’s always been a tough, no-b.s. type of guy.”

Those who know White say he is not always that way in private. Some of his former law clerks, while admitting that White could be a tough taskmaster, said they also found him to be considerate, gracious and loyal.

Former U.S. Solicitor General Rex Lee, a White clerk in 1963, spent much of last summer in a Washington-area hospital being treated for cancer that is now in remission. “There was no one who showed more concern for me than Justice White,” Lee said.

‘Humble’ View of Job

Regardless of White’s compassion in private, Peter Kalis, a Pittsburgh attorney and former clerk for him, said the justice does not believe it is the Supreme Court’s business to make social policy.

“He has a humble view of his role and the court’s role,” Kalis said. “He just decides cases and is not much interested in imposing on the country Byron White’s view of America.”

White’s opinions are direct and to the point, and rarely offer a wider view of the law or the Constitution. Several prominent legal experts said they were hard-pressed to recall a single phrase from White’s 26 years of opinions. His most memorable line may have come in 1986, when he wrote that to suggest that the Constitution protects the rights of homosexuals as well as married couples “is, at best, facetious.”

“He is not a professor,” said William E. Nelson, a New York University law professor and former clerk to White. “He is first and foremost a lawyer, and that’s how he decides case.”

Some of White’s former clerks say that he is the least dogmatic member of the court. “He seems to decide the case that is in front of him without thinking about ideology or politics,” said Nicholas Spaeth, North Dakota’s attorney general, who was a White clerk in 1978.

Not an Idealogue

Burke Marshall, who headed the Justice Department’s civil rights division under Kennedy, said that White, though an ally of the court’s conservatives, “doesn’t approach cases with their preconceived ideology. He is a hard-nosed skeptic, constantly probing. In that process, over many years, he has come to have some strong views about the law and his conclusions happen to coincide with theirs.”

“I don’t agree with a lot of his positions,” added Marshall, a Yale law professor, “ but you have to remember where he grew up. He’s a Western outdoorsman.”

Born in 1917 in Ft. Collins, Colo., White was raised in the small beet-farming town of Wellington. His father, a staunch Republican, managed a lumber yard. White has described his family as very poor, and he worked from his earliest years.

Even then, friends described White as both smart and tough. He was graduated first in his class at high school and at the University of Colorado in Boulder. His excellence in three sports--baseball, basketball and football--led a Denver Post sports writer to dub him a “real Whizzer,” a nickname that stuck, although White despised it.

Name a Household Word

Football was his best sport, and in 1937 it made Whizzer White a household word. As the best college football player in America he led the nation in rushing and scoring and brought Colorado an undefeated season.

Yet White was no ordinary jock. He shocked his coaches and the entire state of Colorado by leading a move within the team to turn down a chance to play in the Cotton Bowl. He relented only when the coaches promised that football practice would not interfere with his preparation for final exams.

White won a Rhodes scholarship that year, but the Pittsburgh Pirates professional football team (later the Steelers) offered him $15,800 to play in the fall--by far the largest salary in the league. He accepted, led the league in rushing for the season and, in January, headed off to Oxford.

There, in 1939, he met John F. Kennedy, a son of the U.S. ambassador in London. Four years later, the two met again in the South Pacific during World War II. White was the intelligence officer who debriefed the commander of the patrol boat PT-109 after a Japanese destroyer sunk it.

After the war, White was graduated from Yale Law School and served for a year as a clerk to Chief Justice Fred Vinson before going on to become a successful lawyer in Denver in the 1950s.

Worked for Kennedy

In 1960, when Kennedy declared his presidential candidacy, White went to work in Colorado on his friend’s behalf, and he is credited with swinging his state’s delegation to J.F.K.’s side at the convention in Los Angeles. White was offered a number of positions in the new Administration, and chose to become the No. 2 man in the Justice Department under Atty. Gen. Robert F. Kennedy.

When Supreme Court Justice Charles Whittaker resigned in 1962, the names of several nominees were forwarded to the President, but it was Kennedy himself who decided on White. Legal issues and judicial philosophy seemed to play no role in the choice, according to Kennedy’s associates. The President knew White and admired him. White and Arthur Goldberg, whom he appointed to the high court five months later, were “his kind of people,” Robert Kennedy later explained.

White refused to label himself liberal or conservative. “I guess we’ll just have to let the record speak for itself,” he said at the time.

At 44 years old, he was one of the three youngest appointees of this century. After a brief Senate hearing and unanimous confirmation, White took his seat on the court just two weeks after he was nominated.

Dissenter on ‘Miranda’

Even in his early years as a justice, White regularly dissented when the Earl Warren Court ruled to protect the constitutional rights of criminal suspects. He was in the minority, for example, when the court declared in 1966 (Miranda vs. Arizona) that suspects must be informed of their rights to remain silent and to have a lawyer present when questioned by police.

“I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police’s asking a suspect whom they have a reasonable cause to arrest whether or not he killed his wife,” White wrote in typically acerbic style.

In the 1980s, criminal law is only one of the areas in which White and the Reagan Administration see eye to eye. On the high-voltage issue of prayer in the public schools, for example, White has regularly sided with the Administration’s viewpoint.

Three years ago, when the justices struck down an Alabama law calling for “voluntary prayer” in the schools, both White and Rehnquist dissented. White agreed with Rehnquist that the Constitution merely bans establishment of a national religion, and he added: “I would support a basic reconsideration of our precedents” requiring separation of church and state.

White has little respect for precedent across the board. Last year, in a pivotal affirmative-action case, he dissented when the court said that Santa Clara County, Calif., was justified in promoting a woman to a skilled job over a slightly better qualified man because no woman had held such a job before. He added that if given a chance, he would “overrule Weber,” the 1979 ruling that first upheld voluntary affirmative action in the workplace.

School Case Reopened

Just last month, White joined a five-member court majority in voting to reopen a 1976 case in which the court held that private schools could not exclude black children. White and Rehnquist had dissented from that decision, and this time around they were joined by Reagan’s three nominees--Scalia, Sandra Day O’Connor and Anthony M. Kennedy.

White is second in seniority on the bench to William J. Brennan Jr., but no one suggests that White is slowing down with age. Regarded by many as the hardest worker on the court, he is in his chambers by 7 a.m., takes an exercise break in the afternoon and is back at work during the dinner hour.

“The people get their money’s worth out of that public servant,” Kalis said.

In the hallways, the thick-shouldered White looks every bit the old football player. He walks with a lumbering gait, bent forward at the waist as if leaning into a gale. One new court employee commented recently that he had learned his first lesson there the hard way: Never shake hands with Byron White. He still has a crushing grip and enjoys exercising it.

Tough But Fair

On the bench White asks tough, direct questions and expects answers in kind. Interrupting a lawyer in mid-sentence recently, he snapped: “So your case rests entirely on your First Amendment argument?”

“Well, your honor. . . ,” the lawyer began, trying to find a way to save the other half of his argument. “Yes or no? What’s your answer?” White demanded.

In his defense, White’s clerks point out that his sharp questioning is fair: Both sides get the same treatment.

White sits at the left hand of Chief Justice Rehnquist during the oral arguments, and the two often talk. When the conservatives are in the majority Rehnquist assigns the writing of the court opinion, and he often hands the most important cases to White.

So far this term, White has written 14 court opinions, more than any of his colleagues. He has written that the Constitution’s guarantee of freedom of the press does not extend to high school journalism, that striking workers do not have a right to subsidized food stamps, that former alcoholics may be denied Veterans Adminstration benefits and that the police may search a homeowner’s garbage can for evidence.

No Longer ‘Swing Vote’

If White is as hard-working as ever, he has lost his reputation as a swing vote, at least on civil rights issues. Most liberal attorneys have written him off as lost. Marsha Levick, legal director of the National Organization for Women’s legal defense fund, said: “His opinions reflect an enormous insensitivity on rights for women, gays and minorities.”

White once easily voted in favor of civil rights, back when the plaintiffs were fighting segregated lunch counters and Bull Connor’s fire hoses in Alabama. Nowadays, the issues are affirmative action and gay rights, and White is not so comfortable with them.

“He’s not changed at all in 26 years,” insisted one prominent Washington attorney who requested anonymity.

“The issues have changed. The world has changed, and he hasn’t.”