The Whiz

Notorious for his distrust of the media, retired U.S. Supreme Court Justice Byron R. White would not grant an interview to Law School professor Dennis J. Hutchinson when Hutchinson proposed a book about the justice’s life. When White promised not to hinder his former law clerk, however, Hutchinson proceeded. And this year, Free Press published Hutchinson’s The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White, chronicling White’s striking array of accomplishments.

Born to near poverty, White went on to rank number one in his first year at Yale Law School, become a Rhodes Scholar, and receive decorations for his wartime Navy service. He earned the highest salary ($15,800) of any professional football player in 1938 as a halfback for Pittsburgh—later playing for the Detroit Lions—and served on the Supreme Court for more than 30 years, from 1962 to 1993.

Hutchinson painted his portrait of White, a man who fascinates him both as a sports star and a boss, based on talks conducted over three years with White’s friends, former law clerks and Justice Department colleagues, college and professional football teammates, and fellow Navy servicemen.

Indeed, what had at first seemed to be a tremendous barrier, says Hutchinson, in the end gave him the “luxury to have the freedom to say what I wanted.”

Hutchinson, who received his law degree from the University of Texas at Austin, intended for his book to be different from many judicial biographies that primarily analyze the subject’s court rulings. Rather than treating White’s pre-court years as a “brief distraction before the main event,” Hutchinson chose to feature them. He argues that White’s personality and values were formed early in his life, around the age of 14 or 15, based on four major influences: a Depression-era childhood in Colorado, the closeness of his family of four, his older brother’s success in the classroom and on the athletic field, and the innovative spirit of the New Deal. “His life was less a voyage of discovery than an exercise in application and refinement,” he notes.

Hutchinson not only aims to present a personal story but also to refute what he thinks are one-dimensional views or assumptions about the high court and judges on it. Though the professor frames White as a maverick, he avoids polarizing him.

“Throughout, I never use reductionistic terms like ‘liberal’ or ‘conservative’ to describe a judge or his actions, except when I quote others who use them,” he says. “The decisions judges make are more complex than that. Readers of my book will sense that White’s decisions, in particular, were made on a case-by-case basis.”

White’s decisions, Hutchinson says, reflected nonconformity with the predominant Court views of his tenure: He dissented in Miranda v. Arizona on the basis that the warnings it required of police would return a “criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” White’s dissent in Roe v. Wade, Hutchinson says, refuted the majority opinion, which held that “without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request.”

It was as a brainy, all-around standout runner, receiver, passer, and punter that White picked up the nickname he loathed, “Whizzer,” believing it emphasized his athletics over his academics. He also learned as a football player about what he called the “emptiness and distraction” of fame, Hutchinson says.

But while White’s indifference to fame may have led him to scorn what he viewed as his colleagues’ “exaggerated view of their role in our polity,” he himself will leave a lasting mark, believes Hutchinson, who concludes that White’s legacy lies not only in his “caustic dissenting opinions” but also in “his industry and integrity, his sustained effort to decide cases with detachment, and acute sensitivity to the judicial role.”—J.P.