- The Washington Times - Monday, April 22, 2002

The late Supreme Court Justice Byron White was personally impressive and judicially remarkable. He was impressive for his accomplishments. Valedictorian of his high school and university classes, Byron White was Phi Beta Kappa and a Rhodes Scholar. A top college and professional football player, he was first in his class at Yale Law School and led the NFL in rushing in the same year. He clerked for Chief Justice Fred Vinson and served as deputy attorney general in the Kennedy administration.
He was remarkable for his judicial philosophy. Appointed in 1962, while the Warren Court was busy rewriting the Constitution and remaking society, Justice White said after his confirmation hearing that he was there simply "to decide cases." In an age when the Constitution means whatever judges say it means, when judges claim for themselves power to run the country and define the culture, Justice White was the last Democrat appointee to believe there was something, anything, the Supreme Court cannot do.
Justice White's decisions, even those involving the same constitutional provision, demonstrated the futility of using political labels such as "conservative" or "liberal" to describe judges. As a First Amendment "liberal," Justice White dissented from the Supreme Court's decision in Barnes vs. Glen Theater (1991), upholding a ban on nude dancing. As a First Amendment "conservative," he wrote the Supreme Court's opinion in New York vs. Ferber (1982), upholding a ban on child pornography.
As an Eighth Amendment "liberal," Justice White dissented from the Supreme Court's decision in Ingraham vs. White (1977) that the ban on cruel and unusual punishment did not apply to corporal punishment by teachers. He was the fifth vote in Furman vs. Georgia (1972), holding that procedures used to mete out the death penalty rendered it cruel and unusual punishment. As an Eighth Amendment "conservative," he voted to uphold the death penalty under new procedures in Gregg vs. Georgia (1976).
Looking only at results, it's no wonder commentators have said that Justice White's record "defies easy ideological categorization." Judges should not be judged ideologically by the results they reach but philosophically by the way they reach those results. In this respect, America would be much better off if more judges used Justice White as their guide.
Justice White explained his view of a court's proper role throughout his career. That these explanations often came in dissenting opinions showed Justice White's principled resistance to the politicizing of justice. Dissenting in Miranda vs. Arizona (1966), he said a decision claiming to interpret the Constitution must be "a fair exposition of the constitutional provision…. Decisions like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice." The Supreme Court's jurisprudential trail is littered with the "ill-defined notions" it uses to rewrite, rather than interpret, the charter.
Dissenting in Roe vs. Wade and Doe vs. Bolton (1973), Justice White said the Supreme Court "simply fashions and announces a new constitutional right…with scarcely any reason or authority for its action." He wrote: "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."
Dissenting in Thornburgh vs. American College of Obstetricians and Gynecologists (1986), Justice White explained that "decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made, and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken." Stunning in simplicity and profound in substance, this statement captures what America's founders considered the proper exercise of judicial power.
In one of his most famous majority opinions, Bowers vs. Hardwick (1986), Justice White emphasized that the Supreme Court must "assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values." He warned: "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…. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority."
Unfortunately, the judiciary has increasingly abandoned Justice White's concern for legitimacy and ensuring authority is exercised by its "proper possessors." Instead, an increasingly activist judiciary prefers what Justice White once condemned as an "exercise in raw judicial power" to achieve desired results. The battle over the judiciary is indeed a battle over "authority to govern the country." Justice White knew that authority belonged to the people, not to judges.

Thomas L. Jipping is a senior fellow in legal studies at Concerned Women for America.

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