Message of President John F. Kennedy nominating Byron R. White to be an Associate Justice of the Supreme Court, 04-03-19 - NARA - 306363.tif|John F. Kennedy's letter to the Senate nominating White to the Supreme Court US Supreme Court November 19, 1962.png|The Supreme Court seen pictured on November 19, 1962. White (top left) was the Court's second most junior justice, after
Arthur Goldberg, having arrived on the bench in April. File:Burger Court in 1973.jpg|The Supreme Court pictured in 1973, White is pictured at bottom right On April 3, 1962, President Kennedy nominated White to be an
associate justice of the
Supreme Court, succeeding
Charles Evans Whittaker. The president said of White—a longtime friend of his—that "he has excelled at everything. And I know that he will excel on the highest court in the land." His Supreme Court tenure was the fourth-longest of the 20th century. He consistently voted against creating constitutional restrictions on the police, dissenting in the landmark 1966 case
Miranda v. Arizona.
Substantive due process doctrine Frequently a critic of the doctrine of "
substantive due process", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of the
Fifth Amendment and
Fourteenth Amendment, White's first published opinion as a Supreme Court Justice was a joint dissent with Justice Clark in
Robinson v. California (1962), foreshadowing his career-long distaste for the doctrine. In
Robinson, he criticized the remainder of the Court's unprecedented expansion of the Eighth Amendment's prohibition of "cruel and unusual punishment" to strike down a California law providing for civil commitment of drug addicts. He argued that the Court was "imposing its own philosophical predilections" on the state in this exercise of judicial power, although its historic "allergy to substantive due process" would never permit it to strike down a state's economic regulatory law in such a manner. In the same vein, he dissented in the controversial 1973 case
Roe v. Wade. White voted to strike down a state ban on
contraceptives in the 1965 case of
Griswold v. Connecticut, although he did not join the majority opinion, which famously asserted a "
right of privacy" on the basis of the "penumbras" of the
Bill of Rights. White and Justice
William Rehnquist were the only dissenters from the Court's decision in
Roe, though White's dissent used stronger language, suggesting that
Roe was "an exercise in raw judicial power" and criticizing the decision for "interposing a constitutional barrier to state efforts to protect human life." White, who usually adhered firmly to the doctrine of
stare decisis, remained a critic of
Roe throughout his term on the bench and frequently voted to uphold laws restricting abortion, including in
Planned Parenthood v. Casey in 1992. White explained his general views on the validity of substantive due process at length in his dissent in
Moore v. City of East Cleveland (1977): The Judiciary, including this Court, is the 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 even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major
judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930s and 1940s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority. White parted company with Rehnquist in strongly supporting the Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with Justice
William J. Brennan in 1973's
Frontiero v. Richardson that such laws should be subject to strict scrutiny. Only three justices joined Brennan's plurality opinion in
Frontiero; later
gender discrimination cases would be subjected to intermediate scrutiny (see
Craig v. Boren). In
Rostker v. Goldberg, White joined Brennan and Marshall in dissent arguing that male-only
Selective Service registration was unconstitutional. White wrote the majority opinion in
Bowers v. Hardwick (1986), which upheld
Georgia's anti-sodomy law against a substantive due process attack: Georgia, however, conceded during oral argument that the law would be inapplicable to married couples under the precedent set forth in
Griswold v. Connecticut. A year after White's death,
Bowers was overruled in
Lawrence v. Texas (2003).
Death penalty White took a middle course on the issue of the death penalty: he was one of five justices who voted in
Furman v. Georgia (1972) to strike down several state capital punishment statutes, voicing concern over the arbitrary way in which the death penalty was administered. The Furman decision ended
capital punishment in the U.S. until the court's ruling in
Gregg v. Georgia (1976). In that case, White voted to uphold Georgia's new capital punishment law. White accepted the position that the
Eighth Amendment to the United States Constitution required that all punishments be "proportional" to the crime; thus, in
Coker v. Georgia (1977), he wrote the opinion that invalidated the death penalty for rape of a 16-year-old married girl. His first reported Supreme Court decision was a dissent in
Robinson v. California (1962), in which he criticized the Court for extending the reach of the Eighth Amendment. In
Robinson the Court for the first time expanded the constitutional prohibition of "cruel and unusual punishments" from examining the nature of the punishment imposed and whether it was an uncommon punishment − as, for example, in the cases of flogging, branding, banishment, or electrocution − to deciding whether any punishment at all was appropriate for the defendant's conduct. White said: "If this case involved economic regulation, the present Court's allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress." Consistent with his view in
Robinson, White thought that imposing the death penalty on minors was constitutional, and he was one of the three dissenters in
Thompson v. Oklahoma (1988), a decision that declared that the death penalty as applied to offenders below 16 years of age was unconstitutional as a cruel and unusual punishment.
Abortion Along with Justice
William Rehnquist, White dissented in
Roe v. Wade (the dissenting decision was in the companion case,
Doe v. Bolton), castigating the majority for holding that the U.S. Constitution "values the convenience, whim or caprice of the putative mother more than the life or potential life of the fetus."
Civil rights as Thomas' wife,
Virginia Lamp, looks on (1991) White consistently supported the Court's post-
Brown v. Board of Education attempts to fully
desegregate public schools, even through the controversial line of forced busing cases. He voted to uphold
affirmative action remedies to racial inequality in an education setting in the famous
Regents of the University of California v. Bakke case of 1978. Though White voted to uphold federal affirmative action programs in cases such as
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) (later overruled by
Adarand Constructors v. Peña, 515 U.S. 200 (1995)), he voted to strike down an affirmative action plan regarding state contracts in
Richmond v. J.A. Croson Co. (1989). White dissented in
Runyon v. McCrary (1976), which held that federal law prohibited
private schools from discriminating on the basis of race. He argued that the legislative history of 42 U.S.C. § 1981 (popularly known as the "
Ku Klux Klan Act") indicated that the Act was not designed to prohibit private racial discrimination but only state-sponsored racial discrimination (as had been held in the
Civil Rights Cases of 1883). White was concerned about the potential far-reaching impact of holding private racial discrimination illegal, which if taken to its logical conclusion might ban many varied forms of voluntary self-segregation, including social and advocacy groups that limited their membership to blacks: "Whether such conduct should be condoned or not, whites and blacks will undoubtedly choose to form a variety of associational relationships pursuant to contracts which exclude members of the other race. Social clubs, black and white, and associations designed to further the interests of blacks or whites are but two examples".
Runyon was essentially overruled by 1989's
Patterson v. McLean Credit Union, which itself was superseded by the
Civil Rights Act of 1991.
Relationships with other justices White said he was most comfortable on Rehnquist's court. He once said of
Earl Warren, "I wasn't exactly in his circle." White disliked the politics of Supreme Court appointments, but had great faith in representative democracy, responding to complaints about politicians and mediocrity in government with exhortations to "get more involved and help fix it." He retired in 1993, during
Bill Clinton's presidency, saying that "someone else should be permitted to have a like experience." When he retired, White was the only remaining justice appointed by a Democrat on the Court. Clinton nominated, and the Senate approved, Justice
Ruth Bader Ginsburg, a judge from the
U.S. Court of Appeals for the D.C. Circuit and a former
Columbia University law professor, to succeed him. ==Later years and death==