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July 3, 2020

Joining the Court’s Judgments: Byron White and the Odd Power of the Swing Justice

The Supreme Court in 1970, with Justice Thurgood Marshall at top Left and Justice Byron White second-from-right, looking into the camera in his glasses, June 9, 1970. Photo Credit: Bettmann/Getty Images

by David Kurlander

Over the past few weeks, Chief Justice of the United States John Roberts has sided with the Supreme Court’s liberal justices in expanding L.G.B.T.Q. rights, upholding Deferred Action for Childhood Arrivals (DACA), and undoing a Louisiana law limiting abortion access. In the latter two cases, Roberts was the decisive “swing” vote. Right-wing legal groups are ringing the alarm. Defenders of Roe v. Wade and other at-risk progressive precedents are eyeing Roberts’ rulings with hope. The New York Times’ Adam Liptak described Roberts as the most powerful Justice since Charles Evans Hughes. Almost 50 years ago, Justice Byron White emerged as a similarly authoritative “swing justice” on Chief Justice Warren Burger’s split Court. And, as with Roberts, White’s political impact in his moment of particular deciding power was not necessarily reflective of his larger political legacy…

Byron White was famous long before he became a Supreme Court Justice. He was the 1930s example of a “student-athlete,” breaking NCAA rushing records at the University of Colorado while being valedictorian. After graduation, White—nicknamed “Whizzer”—played one NFL season for the Pittsburgh Steelers, who gave him a then-unprecedented $15,800 single-year deal in exchange for his delaying matriculation as a Rhodes Scholar. When he did go to England, in 1939, he met young John F. Kennedy, who was shadowing his father, then serving as Ambassador. White and JFK strengthened their bonds while serving on PT Boats in the Solomon Islands during the War. White eventually became an influential Denver-based lawyer, and when the Kennedy campaign came calling in 1959, he agreed to become the Chairman of Colorado Citizens for Kennedy.

White followed the victors to Washington as Robert Kennedy’s Deputy Attorney General, where he was tasked with responding to the seismic growth of the Civil Rights movement. In 1961, RFK sent White to Birmingham, Alabama to oversee 500 U.S. Marshals sent to protect the Freedom Riders, diverse activists who took whites-only interstate buses across the South to test desegregation laws. White successfully convinced bigoted Alabama governor Scott Patterson to provide additional state forces to protect the riders, but offered a characteristically restrained—even dismissive—response when asked about the mission: “I had thought that the administration ought to locate the primary leadership in the civil rights fight outside the Department of Justice.”

JFK nominated White to the Supreme Court the next year. White continued to avoid partisan statements, unlike fellow Justice William O. Douglas (who openly supported liberal causes to the point of near-impeachment). White occasionally  took unexpectedly passionate positions, including his penning a rousing concurrence to Douglas’ majority opinion in Griswold vs. Connecticut (1965), which protected access to the newly available birth control pill. On the whole, though, White was the most cautious of the Democrat-appointed members of Chief Justice Earl Warren’s famed activist court.

Warren’s retirement changed everything. With the centrist Burger in place as the new Chief Justice and Nixon’s 1971 nominations of conservatives William Rehnquist and Lewis Powell, the Court had moved to a 4-4 liberal-conservative split, with White as the question mark. White’s first significant deciding vote came in 1972, when he tipped the balance in the 5-4 decision to constrain the death penalty.

White’s colleague Thurgood Marshall, who became the first Black justice in 1967, had long been openly discussing the racial injustices embedded in death sentences. As a young NAACP lawyer, Marshall had investigated the court-martialing of Black soldiers in Korea for “misbehavior before the enemy” and had found racial disparities around which soldiers received death sentences for their refusals to fight. Marshall brought his concerns to General Douglas MacArthur, who was devastatingly dismissive. Marshall had developed the firm opinion, according to Bob Woodward in his prosaic portrait of the Burger court, The Brethren, that the death penalty was “the ultimate form of racial discrimination.”

Marshall’s view was spreading across the country. Executions had virtually stopped nationwide after 1967, following widespread condemnation of then-California Governor Ronald Reagan’s push to execute Aaron Mitchell, a Black man convicted of killing a police officer. In early 1972, the Court heard oral arguments in Furman v. Georgia, a case involving a young Black man, William Henry Furman, sentenced to death for killing a white Coast Guard officer during a bungled home burglary. In a star-making turn, NAACP Legal Defense Fund advocate Anthony Amsterdam condemned capital punishment, arguing that its randomness, discriminatory tendencies, and brutality put it in direct contradiction with the 8th Amendment ban on cruel and unusual punishments.

It was White, not Marshall, who had the power to push the scales. White’s reasoning for invalidating the death penalty when administered in a discriminatory and capricious manner, however, was characteristically stoic: “Common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct, and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.” In other words, if executions were more numerous and organized, perhaps they would not be cruel and unusual. White’s argument may not have been particularly idealistic, but he effectively ended the death penalty for the next five years, staying the penalty for almost 700 inmates. 

White’s streak as a reluctantly liberal swing justice did not last long. The following year, he decisively swung with the conservatives on a series of obscenity cases that led to a national crackdown. He argued against legalizing abortion, alongside only Justice Rehnquist, in Roe v. Wade. And he ultimately supported the re-establishment of the death penalty in 1976, so long as the jury’s imposition of capital punishment was subject to limitations and meaningful review.

Perhaps Roberts will only remain a liberal panacea for a moment. But as the legal community reckons with the Chief Justice’s unlikely new role, there are definite echoes of Byron White’s understated road toward pausing capital punishment.

For more on Justice Byron White, check out Dennis Hutchinson’s The Man Who Once Was Whizzer White. For more on the death penalty and the NAACP legal defense fund, listen to Bryan Stevenson and Sherrilyn Ifill in the recent Stay Tuned compilation episode, “The Justice Archives.”

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