Byron White

From professional footballer to Supreme Court Justice
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The Independent Online

Byron Raymond White, lawyer and footballer: born Fort Collins, Colorado 8 June 1917; Deputy Attorney General of the United States 1961-62; Associate Justice of the US Supreme Court 1962-93; married 1946 Marion Stearns (one son, one daughter); died Denver, Colorado 15 April 2002.

Byron White had a career which in today's pressurised and compartmentalised world would be unimaginable – combining brilliant legal scholarship with a dazzling if short-lived spell as a top-flight professional sportsman. Never again, it may confidently be asserted, will a man star in the National Football League and then scale an even loftier peak in the legal profession, perched as a Justice of the Supreme Court for more than three decades.

In the legal world he will be remembered as a man of forceful and sometimes unexpected opinions, who defied easy categorisation. White was nominated by his friend John F. Kennedy to the court then headed by Chief Justice Earl Warren at the height of its liberal activism in the early 1960s. In those initial days however he would often prove a conservative odd man out. Only as the court – and American society itself – shifted rightwards did he move into its intellectual mainstream. Yet, when he retired in 1993, he was the only Democratic appointee in its ranks.

But that came far later. The Byron White who first seized the attention of his countrymen was another creature entirely. He was the man the sports writers dubbed "Whizzer White", a college football sensation at the University of Colorado, who put up unmatched offensive figures in rushing and scoring.

White was a true Corinthian, an all-rounder whose academic prowess had by then won him a Rhodes Scholarship. In those days, you could have the best of both worlds – and he did. White deferred his arrival in Oxford for several months in order to play a season of professional football with the Pittsburgh Pirates (now known as the Steelers). This was no exercise in dilettantism either. White received the then record NFL salary of $15,800 and led the league in rushing.

Two years later, his spell at Oxford having been cut short by the start of the Second World War, he did the same thing: taking a leave of absence from Yale Law School – then as now the most prestigious establishment of its kind in the country – to play a couple of seasons with the Detroit Lions (where in 1940 he again led the league in rushing).

White was never comfortable with his athletic glory. He hated the epithet "Whizzer", and later tried to distance himself from his earlier persona. One telling episode is recounted by his biographer Dennis Hutchinson, when White had just been appointed Deputy Attorney General in 1961 and was having lunch in a Washington restaurant. "Say," said the waitress, "aren't you Whizzer White?" After a long pause came the answer: "I was."

By now White was clearly on the law's fast track, an eminent jurist, with gilt-edged political connections. His relationship with the future President Kennedy went back to their days in Oxford in 1939, and later to the war in the Pacific where both were navy lieutenants. Indeed it was White, an intelligence officer, who wrote the official report of the sinking of Kennedy's torpedo boat PT-109 by a Japanese destroyer.

When the young senator for Massachusetts made his White House run in 1960, White helped organise the Kennedy campaign in his native Colorado. When Kennedy became President, White's first reward was the no 2 position in the Justice Department, under the Attorney General Robert Kennedy. His second was appointment to the Supreme Court in March 1962.

As an associate justice, White was never easily pigeonholed. He was impatient with ritual. His dissents were frequent, but when he was part of the majority, his opinions were often laconic and unrevealing. More often than not he sided with the government, especially where state and federal rights were at issue.

In two of the most famous cases of his tenure – the 1966 Miranda decision that now obliges police officers to inform a suspect of his right to remain silent and to summon a lawyer, and the 1973 Roe vs Wade that enshrined a woman's right to have an abortion – he sided with the dissenting minority. By contrast, White took issue unsuccessfully in 1991 with an Indiana law that banned nude dancing, on the grounds that it violated the First Amendment right of free expression. The practice "may not be high art, to say the least", he wrote, but "that should not be the determining factor in deciding this case".

The opinion illustrated the unshakeable conservatism of White's jurisprudence, and his belief that the court should confine itself to a narrow legal function, without, as he once wrote, imposing "its own extra-constitutional value preferences". Such views were less common in the 1960s and much of the 1970s. Since the 1980s, they have been the prevailing orthodoxy.

But 31 years on the bench of the highest court in the land, in the most prestigious legal surroundings imaginable, could not dispel one abiding irony; that in the "serious" part of his career, for all his eminence, White never achieved the fame of "Whizzer White" as he made his sensational plays on the football fields of Colorado, Pittsburgh and Detroit.

Rupert Cornwell

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