FORTY YEARS AGO, President John Kennedy got his first chance to name a Supreme Court justice when Charles Whittaker, a lackluster Eisenhower appointee worn out after only five years of service, announced his resignation. On April 3, 1962, Kennedy nominated his deputy attorney general, the famous football player and Rhodes Scholar from Colorado, Byron White. A mere eight days later--rocket speed compared to today's slow pace--White was confirmed by a unanimous voice vote.
In choosing White, who died last week, Kennedy sought a justice who generally shared his views of government. In large part, that meant a justice who believed in the beneficence of the federal government and thus would be loath to circumscribe its powers and willing to enforce its decisions.
White, who served 31 years, turned out to be that kind of justice, a strong nationalist with a broad view of legislative power. He supported the constitutionality and enforcement of the federal civil rights laws and deferred to the judgments of the administrative state grown up since the New Deal. He voted in favor of the legislative veto and the independent counsel law.
Having resigned in 1993, White wasn't around for the recent line of federalism cases in which the court has limited congressional power. White doubtless would have sided with Congress. By today's parlance, White would have been a judicial liberal on that issue. But only on that issue.
Indeed, what is most striking about White's career is the extent to which he disagreed with colleagues in cases raising claims of individual rights. Take, for example, criminal law enforcement, where White usually stood with the government and where, most notably, he dissented in Miranda v. Arizona, the landmark 1966 case that required police to advise a suspect of his right to remain silent and consult with a lawyer.
Or consider the First Amendment rights of speech and press. White wrote the 1972 opinion rejecting the claim of reporters to a right to refuse to testify before grand juries. And in the 1989 of Texas v. Johnson, he dissented from the majority's view that flag burning is protected speech.
Consider as well the First Amendment's ban on religious establishments. During White's tenure, the court repeatedly was asked to declare unconstitutional many arrangements previously considered benign or even of public benefit--prayers in public schools, for example. But White refused to join the often successful effort to expel religion from public life, going so far as to observe in dissent in a 1985 case, "I have been out of step with many of the court's decisions dealing with this subject matter." He joined Chief Justice William Rehnquist's call for "a basic reconsideration of our precedents."
In 1973, White famously dissented in Roe v. Wade from the court's holding that the right of privacy encompasses a right to abortion. White never reconciled himself to Roe, which he called "an exercise of raw judicial authority." And in every subsequent case in which the court was asked to reconsider Roe, he was prepared to overrule it.
Not surprisingly, when the court narrowly rejected an invitation in 1986 to extend the right of privacy to include homosexual sodomy, White was assigned the job of writing the majority opinion. The claim for such a new right as one "deeply rooted in this nation's history and tradition" was "facetious, at best," he wrote.
White's approach to judging reflected his concern for the role of the court. He believed that the court shouldn't make policy in areas the Constitution confides to the political branches or the people. That explains his comment in the sodomy case: "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 language or design of the Constitution."
Few prominent Democrats speak in such terms today, unless they are lecturing Republicans on the court's federalism cases. And it is telling that in 1993, in choosing White's successor, President Bill Clinton selected a judicial liberal plainly on record in favor of the court's abortion jurisprudence, Ruth Bader Ginsburg, not someone with views similar to the retiring justice.
The times changed, you could say, and the Democrats changed in them. But if the Democrats wish again to look for judges committed to judicial restraint, they will be hard pressed to find a better model than Byron White.
Terry Eastland is publisher of The Weekly Standard.