Oct. 29, 1998
Vol. 18, No. 3

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    Biographical study unveils some of Justice Byron White's mystery

    Legal historian Dennis Hutchinson has been fascinated by the Supreme Court since before he clerked for Justice Byron R. White. Hutchinson-a Senior Lecturer in the Law School, a Professor in the College, the Master of the New Collegiate Division and Associate Dean in the College-has written a new biography of White titled The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. It has been published to rave reviews.

    White spent 31 years on the Supreme Court before his retirement five years ago. To court watchers, he is an enigma-fiercely intelligent but personally prickly, a man who served as a justice for most of his adult life without leaving behind a cohesive legacy. He is also a man with a past. Before he was appointed to the Supreme Court by John F. Kennedy, he had been a college football hero who deferred a Rhodes Scholarship in order to play professional football. He was the highest paid player in the sport's history at that time.

    Why did you choose White as the subject of your first biography?

    I had clerked for Justice White some 20 years ago, and even then, I was frustrated that there was so little about him in print.

    Then, five years ago, as Justice White was close to retirement, I began tentative steps toward a biography project. Two weeks into my work, he announced his retirement. It was a blessing because I knew he wouldn't cooperate, and I figured that his friends, colleagues and associates would be more likely to help me if he was about to retire.

    So if White wouldn't cooperate, this was an unauthorized biography?

    It was. It's a fundamental part of his personality to be modest in a belligerent fashion. He doesn't believe in history or in journalism; he's skeptical of post hoc critics, whether they are commenting on his athletic career or his judicial decisions. I know he sounds difficult, but in an age of ingratiating celebrities, Justice White is a refreshing, almost bracing, counter example, and I liked the idea of writing about someone like that.

    The New York Times noted that White wrote you a note at the start of your project saying, "You're on your own." That must have been a challenge.

    In some ways, but it also gave me an authorial freedom I wouldn't have had otherwise. I knew that Justice White and his family wouldn't be looking over my shoulder as I did research, shaped the outline, wrote the final draft. And he was scrupulously fair about it. He didn't talk to me, but he didn't tell his friends not to talk to me. He didn't block me or second guess me in any way.

    Of course, people knew about his reticence and some people wouldn't talk to me. Two of my most revealing interviews came from very good friends of the justice who knew they were on their deathbeds, so there would be no recriminations from the justice for any breach of confidence. Their comments were crucial because what they were telling me wasn't airbrushed history-they were painting a complete portrait of a capable, hardworking, but difficult, human being.

    But you didn't have access to any of his papers.

    I wouldn't have had access anyway. He had already destroyed all his working papers, so I wasn't missing out on anything he could provide.

    It seems that is common practice among Supreme Court justices.

    Well, they destroy their papers for a few reasons. Traditionally, the court speaks only through its opinions. It doesn't hold press conferences or respond to critics. So this is a logical extension of that convention. Second, the justices are members of the club, nine people who hold enormous power. Most of them keep their mouths closed. As Justice Marshall said, you shouldn't be the first to break the code. Third, I get the sense that members of the court work to maintain some mystique about themselves. They don't have any power of enforcement, so they create an aura of authority so lawmakers will abide by what they say. They don't want people to see the times when they might have been waffling. After they retire, however, most justices donate their papers to a library. White's donation will turn out to be very slender when opened to the public.

    White spent 31 years on the Supreme Court, but your book doesn't have many chapters about his years as a justice.

    No, that's right. Only about one-third of the text is spent on his lengthy judicial career. It was a conscious decision on my part because I'm unsatisfied with judicial biographies that spend a great deal of time retreading the inside story of court decisions with outcomes we already know. What might have been a groundbreaking case at the time has often lost a lot of its power and urgency. What is interesting to me about a judge is how he or she formed opinions and values before reaching the bench. Why do they believe what they do?

    Justice White, for example, grew up in hard times in an agricultural town hit by the Depression and the Dust Bowl. The New Deal, controversial though it was, was critical to the survival of his hometown, and 20 years later, Justice White was reluctant to reduce the scope of power Congress had in a crisis. He was sympathetic to broad governmental powers.

    What was it like to clerk for White?

    Justice White was one of the most intelligent, energetic and influential justices on the Supreme Court. His public manner misled a lot of people. He was bright, but terse and gruff, and I found him to be a superb teacher.

    He relished verbal debate. Some justices rely on clerks turning out mountains of memoranda, but Justice White was most effective when engaged orally. He respected clerks who would dig in with an opposing view; but sooner or later, he'd point to his commission on the wall and say, "See that? The Senate confirmed me, not you." That ended the analysis.

    Do you think he left a legacy?

    His legacy was service. He thought that any other legacy was inappropriate. He believed that the job of a Supreme Court justice was to look at cases as narrowly as possible while giving guidance to other courts and to the bar. He honored those convictions fastidiously. It would have been inconsistent for him to have created an oeuvre of opinions. Do you know if White has read your biography of him?

    He's not said anything to me about it. I assume he's seen it. I suspect he will read it. On the one hand, he's very modest-on the other, how could he resist a book devoted to his life? I honestly don't know what he'll think-but I didn't write it for him.