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Election 2010: What Would Byron White Think?


 Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

 Follow Ari on Twitter at @ariezrawaldman.

Justice WhiteByron White -- Supreme Court Justice, Oxford scholar, Yale Law grad, Navy man, All-American halfback and the NFL's leading rusher in 1938 and 1940 -- has always been one of my favorite historical figures. He had the brains and athletic prowess of ten real men, or the intelligence and athleticism of twenty Ari's. His gridiron nickname was "Whizzer", he turned down being the NFL's highest paid player to study at Oxford, he was a Colorado man at a school full of legacies and Easterners. He's just fascinating. So, today, I found myself wondering: What would Justice White make of yesterday's election?

Progressive legal scholars have given Justice White mixed grades (though he has always been a paradigm of so-called judicial moderation, whatever that is) because his role in the rights revolution of the 60s and 70s was, well, mixed. President Kennedy appointed him in 1962 and he remained on the Court until 1993, when he was replaced by the inimitable Ruth Bader Ginsburg. In that time, he opposed abortion, but supported desegregation; he struck down sex discrimination but he declined to join liberal majorities in defendant rights cases and in cases like Miranda v. Arizona. He wrote the majority opinion in Bowers v. Hardwick, putting the gay rights movement in reverse. How could I like him?

Well, he's a fascinating historical figure -- a liberal of the 1940s who stood pat when liberalism passed him by; a truly well-rounded man who valued scholarship over athletics, but saw his physical health as part of who he was; a lowercase c "conservative" by the 70s and 80s who found Chief Justice Warren not his type -- "I wasn't really in his circle" -- and joked that Chief Justice Burger assigned him opinions just because Burger assumed White would write them better. He also replaced a guy -- Justice Whittaker -- who resigned from the Court after having a nervous breakdown caused by the intellectual rigors of being a judge.

I often wonder, what would Justice White think? So, today, while our much more capable political pundits talk politics, I will geek out and wonder what Justice White would think of yesterday's election. This little exercise will show that our allies in an election need not only be those that agree with us 100% and may be those we least expect. Justice White is a perfect example.

Continue reading "What Would Byron White Think?" AFTER THE JUMP...

Justice White would have had none of the Republican badmouthing of government. He was, in Ken Starr's words, probably the last believer in the New Deal. And, he's right. Justice White never wavered from his earnest belief in government's ability -- and mandate -- to make life better for the people. He was a talisman for the constitutional revolution fought and won by the Progressives and the New Dealers. He would have seen no constitutional issue with health care reform and, quite likely, a public option.

He would have hated the Citizens United decision, the campaign finance debacle that had its fingers all over the 2010 midterms. In a famous opinion in Red Lion Broadcasting v. FCC, Justice White had the chance to consider the role of the FCC in mediating fairness, i.e., the FCC rule that required broadcasters to air political views contrary to their own. In the face of arguments about censorship and an end to news coverage, Justice White said that the FCC "was more than a traffic policeman concerned with the technical aspects of broadcasting and it ... [did not] transgress the First Amendment in interesting itself in ... the kinds of programs broadcast by licensees." In other words, the FCC wasn't a guy in a reflective jumpsuit waving his arms at the corner of 34th Street and 7th Avenue; the Commission was a Magneto-like magician who could use his unique expertise to create order where there appeared to be none. Government can be the expert and that was why we needed an FCC, an FAA, an EPA, an FDA and so on.

So, Justice White would have had little sympathy for the rhetoric of the Tea Party. Sure, deficits are generally bad, high taxes are bad in a recession, we get that. But Justice White would have found vitriol for the stimulus irrational and wrong, and he would have found the anger and hate resonating from Tea Party rallies to be shocking and an affront to his gentlemanly sense of order. He may not have liked rapid change in social mores and would likely never ally himself with leaders like Speaker Pelosi and Congressman Frank, but I think he would have voted Democratic in any race that pitted a Democrat against a Tea Party-influenced Republican

It may have been that "lowercase c" conservatism -- his personal shyness, his distaste for anarchy -- that put him to the right of the so-called "rights revolution" of the Warren Court. Rescuing government from an anachronistic judiciary (the New Dealer in him) was one thing, but forcing government to favor some people over the other (the conservative in him) was beyond the pale. He would have continued to support state restrictions on abortion rights and likely would have disliked cases like Perry v. Schwarzenegger and Log Cabin Republicans v. United States. And for this, I would disagree with him, but I would not lose respect for him.

Justice White's jurisprudence can be explained by recognizing the differences between government rights and individual rights, and his often negative reviews from the left stem from the fact that the progressive movement kept moving, he stood still. That wasn't an intellectual failing, it was an honest reflection of his respect for our system of government and the judiciary.

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  1. WTF? LOL!

    Posted by: TANK | Nov 3, 2010 5:42:45 PM

  2. An odd post. He was totally hot, though...

    Posted by: Ryan | Nov 3, 2010 5:46:17 PM

  3. So you, on a website that purports to address gay issues, analyze the election results from the perspective of someone who would theoretically have favored Democratic party positions on health care and election law, and whose only connection to gay topics or the gay rights movement was to author an opinion saying gay people have no right to have sex anywhere in the United States of America.

    Once again you affirm your willingness to turn every political or legal event into a chance to swoon over liberal politics that are at best indifferent and at worst actively hostile to gay people.

    What is the point of posting this here? Why should readers care about your crush on the football-playing ex-Supreme Court Justice? And when can we look forward to your next post, in which you explain to us silly non-lawyers that Bill Clinton signing DOMA was a really good thing because it made possible lots of non-gay-rights-related progress, and we're just not sophisticated enough to see that?

    Posted by: Matt | Nov 3, 2010 5:56:23 PM

  4. Gee. I am no Byron White scholar, but I have to tell you that your opining on his thoughts set in this world don't reflect an accounting of how the world has changed. The FCC was created to give a chance to the other voice, today it is being used to squelch that voice. When put into place, there were relatively few broadcast outlets, and it was very expensive to build a station. One station was the most popular in 37 states, before power was lmited to 50K watts. Today, the internet makes possible an unlimited variety of voices, low power radio stations are everywhere, and the technology is very inexpensive. The FCC is not needed to make space for different opinions. They just need to get out of the way. However, what is wanted by progressives is a lid clamped down tight on Tea Party types and other dissenting voices. They only want "proper thinking" given full shrift. I am sorry, but I choose not to bow down to any progressive in the name of bigger government. You pepper your article with conventional wisdom about how angry the Tea Party people are. So? Do you criticize Larry Kramer for his AIDS anger? Would White be embarrassed by the anger of the black panthers, or Jesse Jackson, or any of a dozen left-popular spokespeople? Cindy Sheehan perhaps? Oh, she has fallen out of favor. Sorry. Let me ask - aside from me, how many tea party people do you personally know? I am an openly gay man in the tea party in New Orleans and in Baton Rouge and not one of them has said anything to me about my life. I am accepted and listened to. They are only interested in reestablishing the constitution as our S.O.P.

    The Tea Party meetings here, in what you might think of as backwater flyover country, are very intelligent and well purposed. We think we have been taxed enough already.

    And republicans do not badmouth government. I am an elected republican official. We badmouth BAD government; irresponsible people, crooks, totalitarians and the like. We need less government, not more. That does not mean NO government. A Washington Post article mentioned that a Tea Party woman was elected because she blamed Obama for things. Baloney. She was elected because she told the truth about what was happening, not because she concocted some crap and made it stick.

    And lastly, though you mean well, Byron White might not like you putting words in his mouth about today when he really has not had the opportunity to reflect on the truly breathtaking grab of power by the Obama Administration, an administration founded on the promise of everything for everyone, but as far as I can see, in practice NOTHING for gays, even though there has been full control of the congress and White House for two years. If he was a truly great thinker, he would be listening to Beck, for example, and offering COUNTER ARGUMENTS as opposed to simply villifying the man. And if you think Beck is about profiting from hate speech, I dare you to listen to him for six weeks (on radio and TV), catalogue his errors and lies, and offre the truth aobut waht he says. That, as opposed to simply saying "Beck Is A Racist" or somesuch. You seem intelligent, ask yourself why you think Byron White would want you to give over your personal freedoms to a nanny state...

    Posted by: ted | Nov 3, 2010 5:59:07 PM

  5. There's nothing in this statement to lead me to think he'd be an ally -- or even a very interesting "historical figure." (By the way, haven't we redefined "history" as the narrativizing of great white (athletic) men fifty years ago?)

    What value is there is justifying his stagnant progressivism as "an honest reflection of his respect for our system of government and the judiciary." Isn't tis the same crap we're hearing from Obama on DADT? And the decision behind Citizens United?

    Sorry. But I missed it.

    Tho, he's White hot.

    Posted by: Guest | Nov 3, 2010 5:59:23 PM

  6. "he stood still"

    Like a broken clock, he was right twice a day.

    Got it.

    Posted by: Philo | Nov 3, 2010 5:59:36 PM

  7. He is hot. Can you tell me where I can meet him? HOT.

    Posted by: denison | Nov 3, 2010 6:00:32 PM

  8. "and whose only connection to gay topics or the gay rights movement was to author an opinion saying gay people have no right to have sex anywhere in the United States of America."

    I would have thought at least Justice Blackmun (but even the...c'mon), who was doubtless a superior jurist and definitively had a much better record on human rights....but that'd be too pedestrian, I'm sure...and he wasn't a hotty, which matters to a lot of people (not me, I'm a big harry blackmun fan). This is just...funny...very funny in a way that one who singularly doesn't get it can be.

    Posted by: TANK | Nov 3, 2010 6:03:41 PM

  9. Sorry, but I stopped reading after four paragraphs with no apparent point anywhere on the horizon.

    Justice White was a completely wasted appointment to the Supreme Court, whose best decision was to step down.

    I cannot fathom why anyone would give a damn what he would think today.

    Posted by: Skeptical Cicada | Nov 3, 2010 6:04:13 PM

  10. What would Mo Udall do?

    Posted by: Adam | Nov 3, 2010 6:10:38 PM

  11. Uhhh...

    I didn't realize Towleroad was the Byron White Legacy Rehbalitation Center...

    Does Ari work for the Jesse Helms library? The one trying to re-write and transform that monster into a gay hero?

    Posted by: JM | Nov 3, 2010 6:10:57 PM

  12. Ari I get what you are trying to say and it's very interesting historically.

    I can't say more re the commenters because I don't know anything about this guy and they seem to....

    Posted by: Rowan | Nov 3, 2010 6:14:40 PM

  13. I wonder what Abe Lincoln and George Washington would say, now that we are digging up dead people who have no baring on what is happening today.

    Posted by: patrick nyc | Nov 3, 2010 6:26:46 PM

  14. Ari, really?

    Did you read the Bowers majority, in full? Not just the law school text version, which is seriously abridged, but the entire thing?

    Quote: The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.

    (PS... this is an example of judicial moderation, Ari. You know, the opposite of "judicial activism"?!?)

    Quote: And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [p196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

    (note: this is the same nonsense we're dealing with in the DADT and DOMA cases!)

    Quote: Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

    (PS...hey, majority rules!)

    This opinion created decades of hell for the GLB community.

    Posted by: DR | Nov 3, 2010 6:32:34 PM

  15. Thanks for all the comments. I have to say, I didn't anticipate such a response. But for those who think I am trying to rehabilitate Justice White, I am clearly not. I would have thought the comment about his "standing still" as history passed him by would be suggestive of that. Justice White ended up writing the opinion that set our community back decades, and for that, I am not his ally. He is an interesting historical figure, though. I believe he deserves respect much like I believe Justice Scalia deserves respect. Neither were/are allies of our community, but they deserve respect as we all do.

    And, yes, I have read much of Justice White, including his Bowers opinion. It is indeed a decision I disagree with strongly.

    To those who think this isn't relevant because I am writing on an LGBT-oriented site, I disagree. We are a varied community with varied interests. I have a column coming up on intellectual property, but that doesn't have any impact on LGBT civil rights. It may be of general interest to our audience. At least I hope so.

    I drafted this column only to show complexity. Justice White contributed mightily to our legal system, but I disagree with him on many issues. There is complexity there. It's not as simple as "we hate him because he disagrees with us." If it were, we would be no better than Fox News.

    Posted by: Ari | Nov 3, 2010 6:59:19 PM

  16. Ari,

    Lawyer to lawyer, are you kidding me. Byron White? Really?

    In law school, I thought that of all the modern justices, his opinions were by far the most excruciating to read. Which is no surprise when I learned that he had clerks rush them out so that CJ Rehnquist would assign him more. (Apparently, in order to speed up the efficiency that the Burger Court was lacking, Rehnquist would not assign new opinions until after the all assigned ones were already done.) What White lacked in a coherent judicial philosophy he made up by constant competition with other chambers.

    I get that White was impressive because he played professional football while attending Yale Law School and graduating magna cum laude. I get that he was hot too. But seriously, a fascinating historical figure? Even by Supreme Court Justice standards that is jaw-dropping.

    What exactly did he do? What branch of law did he influence? Other than Bowers (which as Kennedy outright stated in Lawrence was wrong then and wrong now), I am hard-pressed to think of one important majority decision that White wrote. He's not an important justice who shaped the law for generations to come in the way that say Brennan, Black, or Stevens did. He didn't even shape the law during his tenure such as O'Connor did (and now her legacy is being uprooted bit by bit by the Court's majority.) He certainly isn't going to go down as a prophetic precursor such as Brandeis or Holmes. He wasn't an important litigator (Marshall, Roberts, Ginsburg). As I see it, his career is basically an extension of his DOJ service: desegregate yes, but do not extend personal liberties. This is especially true in his law-and-order approach to criminal cases. I can't think of a police officer he didn't side with. He and Rehnquist were like twins.

    Bowers is really just the tip of the iceberg. He was an ardently foe of the right to privacy, which he announced in Roe. Even his concurrences in Griswold and Eisenstadt are only half-hearted. He certainly wasn't a New Dealer in the mold of Black or Douglas.

    To me, Byron White represents the fact that JFK basically threw away a Supreme Court nomination. When you think that he could have appointed a great mind like Paul Freund, William Hastie, Archibald Cox, David Bazelon, it's all the more frustrating. Who were his choices? White and Arthur Goldberg, who left the Court to go serve in a completely useless position: UN ambassador.

    Posted by: LS | Nov 3, 2010 7:04:07 PM

  17. Ari,

    Did you wake up to a brain fart or something similar this morning? Because this is a pile of brown stinky stuff....

    Bryon White, was a judge you simply would not have wanted on the current gang of fools!

    Stick to gay rights issues and away from these flights of ridiculous delusional erotic fantasy.....

    Posted by: Brains | Nov 3, 2010 7:05:07 PM

  18. @matt: you wrote: "when can we look forward to your next post, in which you explain to us silly non-lawyers that Bill Clinton signing DOMA was a really good thing because it made possible lots of non-gay-rights-related progress, and we're just not sophisticated enough to see that?"

    you could look for it, but you won't find it. i do not think DOMA did ANYTHING good, and even many conservatives agree.

    but, i should apologize if you think that i think you're "silly". i endeavor to respect everyone, but have been told many times i can wander into pedantry. im sorry about that. as i write more of these columns, i will get better at that.

    Posted by: Ari | Nov 3, 2010 7:05:28 PM

  19. @Ted: I welcome your insightful comments, especially from a voice that does not get heard much on these pages. I take your point that I speak in generalities, but it is the nature of these quick columns. I could have tightened my comments and showed more respect for a nuanced view of government. As it was, the column was getting too long and, I felt, a little too complicated and esoteric.

    Posted by: Ari | Nov 3, 2010 7:08:10 PM

  20. Very complex, ari..very nuanced and complex...very rubber duckies as a metaphor for geothermal energy complex... relevant? ....

    Posted by: TANK | Nov 3, 2010 7:09:19 PM

  21. @Guest: You're right in that I do not think Justice White would be an ally of ours on the Court. He wrote Bowers v. Hardwick! And his conservatism when it came to the sexual revolution and the rights revolution supports that point. I wasn't talking about gay civil rights, I was talking about voting in an election that was about the size and role of government in the economy.

    Posted by: Ari | Nov 3, 2010 7:10:12 PM

  22. @DR: With all the due respect, yes I did read Bowers and I did not try to explain away Justice White's opinion in that case. If you read my column, you will see that I agree with you about his failings and how he and I disagree on these civil rights issues. But that doesn't mean that Justice White would not have voted with the Democrats against the Tea Party (which is what the post was about). Thanks for reading!

    Posted by: Ari | Nov 3, 2010 7:12:14 PM

  23. @LS. Thanks for your comments! All I said was that Justice White was a fascinating historical figure. I didn't say I agree with him. For what it's worth, though, I think you limit the ways in which someone can be an "interesting historical figure". Some would argue that he did contribute to jurisprudence -- eschewing a grand theory of justice IS a grand theory of justice -- but I disagree with that. He is interesting to look at historically for his faults and his place in history. And to a geek like me, I think that's cool. I like to read people who disagree with me and I like to try to understand them. Maybe we should all do that a little more often.

    Posted by: Ari | Nov 3, 2010 7:17:18 PM

  24. To be clear: my comment wasn't to stifle your voice, to criticize, or to belittle. I enjoy your posts on this site. I just fundamentally didn't understand what you were saying. You promised us a "perfect example" of allies in unsuspecting places, but I didn't see how. Now, I see you mean an ally in the very limited instance of going against the tea party. OK, well. Is that really an "ally" or a case of your enemy's enemy?

    Posted by: Guest | Nov 3, 2010 7:21:47 PM

  25. @Guest: Fair point, Guest. There is a difference btw your enemy's enemy and an ally. And I should apologize for not being as clear as I should have been. That is completely my fault and next time I will endeavor to make clarity number 1 above all. Thanks for reading!

    Posted by: Ari | Nov 3, 2010 7:25:28 PM

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