Wednesday, January 30, 2008

Take a Whizzer on the Court

Since Sunday is the Super Bowl, this seems a good time to talk about a guy who arguably held the two coolest jobs a man could have. Byron "Whizzer White was A) a star NFL running back, and B) a Justice on the United States Supreme Court. Here are his football numbers, if you're curious:

A short career, due to World War II and a personal decision that there was more to life than football, but what a few years it was, with three all-pro selections. Note that in 1938 he led the league in rushing yards AND in passes intercepted. That's a reminder that back in the day, players were expected to perform on offense and on defense; obviously Justic White excelled in both.

One notes also how much the game has changed where statistics are concerned. White led the NFL in 1938 with 567 yards rushing; this would be a puny total today. In the season to be finished this Sunday, LaDainian Tomlinson topped NFL running backs with 1474 yards gained on the ground. Granted he played sixteen games to White's eleven; still, Tomlinson rushed for over 92 yards per game while White settled for about 52 yards each contest. Tomlinson's accomplishment dwarfs White's even more once you factor in that teams pass a LOT more today. In 1938 White's team, the Pittsburgh Pirates, attempted 194 passes, fewer than 18 pass plays a game (Whizzer himself hurled 73 of them from his runing back spot!) while Tomlinson's 2007 San Diego Chargers attempted 471 passes, almost 30 pass plays per game. (You can locate all this fun data by browsing on the website).

Well this is Brett's Constitutiton, not Brett's football trivia, so I'd better stop playing fantasy geek and get back to the topic at hand, this story of a pro football player on the U.S. Supreme Court. Full disclosure: I have not read the definitive biography on White, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R White by Dennis Hutchinson (1998). I'm not an avid reader of judicial biographies; I'm more interested in reading books on how judges decided cases than on how they lived. Richard Posner, a judge himself, has gone on record as declaring that most judical biographies are not very good, see Law and Literature, revised ed. (1998) pp. 365-377. Having cited this, I'm obligated to note that Posner singles out Hutchinson's tome as one of the two best judicial biographies he'd seen, p. 373. Posner opines that a big part of the reason why White made such a good biographical subject is that he had such an interesting life before he took his seat on the Supreme Court. (Professor Sanford Levinson has decried that over the past several decades this very quality has been absent from judicial nominees; we don't have Hugo Blacks and Thurgood Marshalls named anymore, men whose pre-Supreme Court careers would make an interesting biography, see The American Supreme Court, 4th ed. (2005), pp. 260-261.)

If Byron White's career led to an insightful biography, it also makes for what I hope is an interesting essay here. Let it be noted that while he was nominated to the Court by President Kenney, a Democrat, White has the distinction of being the only Justice who voted nay in Miranda v. Arizona AND in Roe v. Wade. In A History of the Supreme Court (1993), author Bernard Schwartz refers to White as a "moderate" (p. 272), but I don't think most liberals would consider a dissenting voice in Miranda and Roe as anything other than that of a conservative. Furthermore, White also wrote the majority opinion in Bowers v. Hardwick 478 U.S. 186 (1986), the since overturned decision that upheld Georgia's law against homosexual sodomy.

If there is one lesson to be learned in White's votes in Miranda, Roe, and Bowers it is this: you can't tell how a Supreme Court Justice is going to decide cases based on the political party of the President appointing him. Whizzer was rather conservative in spite of being placed in his seat by a Democratic President. We not uncommonly hear pro-life voices deriding Roe v. Wade as the work of activist liberals, but remember: five of the seven Justices in the Roe majority were appointed by Republicans Eisenhower and Nixon. Remember this point during the ongoing Presidential campaign when we'll hear a million times that the most important reason we should vote for Clinton or McCain is because of who they will nominate to the high court when Justice Stevens finally decides it's time to retire. No President ever knows what he'll really get from his judicial nominees.

Let's look at White's opinions a little. By way of preface--and getting back to Whizzer's gridiron career--have you ever noticed that most of the former pro football players who go into politics speak against Roe and abortion in general? Jack Kemp, Steve Largent,--even Heath Schuler, a Democrat, opposes abortion rights: (Admittedly, unlike White, Kemp, and Largent, Schuler wasn't much of a pro football player.) Sociologists and psychologists could have a field day speculating why a bunch of guys who made a living in a sport where players beat the hell out of each other until the strongest wins usually end up all on the same side on abortion, but I'll leave that alone and just quote a few things White wrote in Doe v. Bolton 410 U.S. 179, a companion case to Roe that follows it in the United States report:

"The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

"With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled 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 of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." (Doe at 221-222).

And here are some choice bits from Whizzer White's dissent in Miranda v. Arizona 384 U.S. 436 (1966), the famous "you have the right to remain silent" case:

"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 repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined." (Miranda at 542).

I just can't reconcile White's statements in Doe and Miranda with Bernard Schwartz's characterization of him as a moderate. These assertions sound to me far more like what one would hear from the host or the callers on the Rush Limbaugh program. Two of the most prominent right-wing positions are there: in Doe that judges shouldn't take away the power of the people to decide, and in Miranda that it's wrong to put concern for the criminal ahead of concern for keeping the peace.

But whether you agree with Justice White or not, isn't it something for a man to star in the NFL and be a Supreme Court Justice. I certainly would like to see high school and college football coaches telling their teams about Whizzer White, the great running back who was a Rhodes Scholar and who later became a judge. How wonderful it would be for young athletes to make up their minds that like White, they were going to try for excellence on the field and in the classroom.

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