From The Law and Politics Book Review

Vol. 8 No. 12 (December 1998) pp. 434-436.

THE MAN WHO ONCE WAS WHIZZER WHITE: A PORTRAIT OF JUSTICE BYRON R. WHITE by Dennis J. Hutchinson. New York: The Free Press, 1998. 577 pp. Cloth $30.00. ISBN 0-684-82794-8.

Reviewed by Tinsley E. Yarbrough, Department of Political Science, East Carolina University. Email: Yarbrought@mail.ecu.edu.

 

President Kennedy considered Byron R. White "the ideal New Frontier judge" (p. 322), and with good reason. Born in Fort Collins, Colorado, and reared in tiny Wellington on the state's high plains, the future justice graduated first both in his high school class and at the University of Colorado, then studied at Oxford on a Rhodes scholarship, took a law degree at Yale, and clerked for Chief Justice Vinson. During World War II, he served with Naval intelligence in the Pacific. But he achieved his greatest fame on the gridiron, first at Colorado, where he was voted an All-American running back and earned the enduring nickname "Whizzer," then with professional teams in Pittsburgh and Detroit. Such a scholar-athlete seemed the perfect fit for New Frontier justice. That White was genuinely reluctant to accept the appointment was for the president simply another "plus in his favor" (p. 322).

Justice White's former clerk Dennis J. Hutchinson, a University of Chicago law professor and editor of the Supreme Court Review, has produced a beautifully written, thoroughly researched, yet strangely uneven biography. Hutchinson's treatment of his subject's early life is outstanding. White's father worked in Wellington's lumber industry and served one term as town mayor. White himself not only excelled in school and sports; he and his brother--the person he admired most--brought in a beet crop, an experience that left both with an appreciation for hard work and White a cigarette habit (smoking kept mosquitoes away in the beet fields) he did not break until 1973. White's relationship with his parents, teachers, and classmates are vividly recounted. Even the impressions of an admiring teacher, which could have been painfully trite, provide insights into the future justice's personality and potential.

Hutchinson's portrait of White's gridiron career is equally absorbing. In fact, football fans would probably find those portions of this biography fascinating. Major games in White's collegiate and professional career, contract negotiations with Pittsburgh and Detroit, game injuries, and the like are given colorful and copious display. Readers also learn that White's well-known antipathy for the press stemmed from what the future justice considered unfair and inaccurate reporting of his gridiron exploits--a distaste, Hutchinson suggests, that may have influenced his reaction to free press claims in such cases as BRANZBURG V. HAYES (1972), where White spoke for a badly divided Court in rejecting a testimonial privilege for newspersons called before grand juries.

The author's accounts of White's study in England, wartime experiences, and political activities as a Denver lawyer are similarly effective, particularly for their treatment of his association with John F. Kennedy, whom White first met in England, where Kennedy's father was U.S. ambassador to the Court of St. James. The future president and future justice became friends when they served in the Pacific during the war; in fact, White prepared the intelligence report on the sinking of Kennedy's PT 109. When Kennedy ran for the presidency, White headed "Citizens for Kennedy." Hutchinson devotes considerable detail to their association, and not always admiringly. He suggests, for example, that White's PT 109 report may have glossed over Kennedy's irresponsibility in the incident.

Hutchinson's description of White's tenure as Kennedy's deputy attorney general, in which capacity he assumed major responsibility for federal judicial appointments and played a key role in a number of major civil rights crises, including the vicious assaults on freedom riders in Alabama, often pushes his subject to the background, however, with the president and especially his brother, the attorney general, assuming the major roles in the narrative. Hutchinson's examination of White's thirty-one year Supreme Court career is even more disappointing. Only at page 335 of a book with 457 pages of main text does he begin examining his subject's judicial career, devoting a nineteen-page chapter to the justice's Warren Court years and a chapter of approximately twenty-five pages each to the Court's 1971, 1981, and 1991 terms. Viewed against the rich detail and depth of earlier portions of the book, these chapters appear almost as afterthoughts, particularly given the study's considerable overall length. The reader is certainly given a taste of the justice's opposition to broad legal pronouncements and desire to limit the decisions of cases largely to their facts, as well as his infrequent departures from such a posture. But very little is revealed of White's relations with other justices and role in the decisionmaking process.

Justice White, as his former clerk makes clear, was not a cooperative subject. Hutchinson had no access to White's papers or the benefit of interviews with the justice; colleagues, friends, and family members familiar with his distaste for publicity were unusually discreet. The impact of such limitations is evident throughout the manuscript; the book contains little mention of the justice's wife Marion or their relationship, for example, nor that with the brother he revered.

But voluminous papers of many of the justices with whom White served, including Black, Brennan (through the Burger Court years), Clark, Douglas, Harlan, Marshall, Powell, and Warren, were readily available. They contain much information about White and his role in the Court's work, including his often-pivotal position on the Burger Court. Hutchinson's failure to draw more extensively on such sources weakens his portrait of White the justice. White detested his nickname Whizzer (or "Buzzer," as Mississippi senator James Eastland, among others, sometimes mistakenly dubbed him); in fact, the title to this book (drawn from the justice's remark to a waitress) reflects his desire to escape his gridiron past. But the relative weight Hutchinson gives White's pre-Court and judicial careers permits White the star athlete to overshadow White the jurist.

Hutchinson may have been attempting to avoid, of course, a criticism often directed at the authors of judicial biographies--that they neglect their subjects' pre-Court lives while focusing unduly on their judicial records. Or he may have been reacting to Justice White's relatively mediocre standing among members of the modern Court and refusal to develop an elaborate judicial and constitutional philosophy readily amenable to systematic analysis. Whatever Hutchinson's motivation, however, Justice White's judicial career deserved more extensive and thoughtful treatment than it receives here. White may not have been one of the greats, but he often played a pivotal position in the Court's decisionmaking, much as Justices O'Connor and Kennedy do on the current Court.

Hutchinson's failure to focus on that role mars an otherwise splendid biography.


Copyright 1995