Byron White (1917–2002) was Colorado’s first-ever US Supreme Court justice, serving from 1962 to 1993, as well as a nationally known college athlete for the University of Colorado and a star pro football player. As a justice, White was remembered for his belief in judicial restraint, writing brief, straightforward opinions that argued against expansive interpretations of constitutional rights. Some legal scholars believe his greatest influence came not in written decisions but in face-to-face discussions with his fellow justices. His sterling achievements in sports and long service on the Supreme Court have ensured him an enduring reputation in Colorado, where the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School and the Byron White US Courthouse in Denver bear his name.
Byron Raymond White was born in Fort Collins on June 8, 1917, to Maude and Albert White. He grew up about ten miles north, in the town of Wellington, where his father served as mayor and worked as a manager for a lumber company. Byron and his older brother, Clayton Samuel White, made extra money by working in the area’s sugar beet fields.
As valedictorian of his small high school, White received a full scholarship to the University of Colorado (CU). There he followed in the footsteps of his brother, who was a football player and student body president before being selected as a Rhodes Scholar in 1934. The younger White started college that year and became a three-sport star, earning all-conference honors in football, basketball, and baseball. He still managed to earn a straight-A average, making him an easy choice for student body president during his senior year.
White’s senior year was one of the most remarkable in the history of college athletics. In the fall of 1937, he led CU to an undefeated season and personally led the country in scoring, rushing, and total offense. He was named an All-American and finished second in the Heisman Trophy voting. CU was invited to the Cotton Bowl, the school’s first bowl game, which it lost to Rice Institute. That winter, sportswriters in New York wanted to see White play basketball so badly that they created the National Invitational Tournament (NIT) to bring CU to Madison Square Garden. The team lost to Temple in the finals. White was subjected to intense media attention, which contributed to his lifelong aversion to the press. He was so exhausted after the season that he skipped spring baseball even though he enjoyed the sport and was a .400 hitter.
Sports and Scholarship
After graduating as valedictorian, White had an unusual decision to make: enroll at Oxford University as a Rhodes Scholar, or enter the National Football League, where he had been promised the biggest payday in league history. He inclined toward Oxford until he learned that he could play the fall football season and still start one term late at Oxford. Drafted fourth overall by the Pittsburgh Pirates (now the Steelers), White earned his record-high salary of more than $15,000 (about $275,000 today) by leading the league in rushing.
After the season, White went to Oxford in January 1939 to study law. When World War II broke out in September 1939, he returned to the United States. Enrolling at Yale Law School, he received the highest grades in the first-year class. In fall 1940, however, he took a semester off to play football for the Detroit Lions, leading the league in rushing for a second time. He returned to the Lions again the next fall.
When the United States entered World War II, White enlisted in the US Navy. He was awarded two Bronze Stars for his service in the Pacific Theater. As an intelligence officer, he wrote the report on the sinking of John F. Kennedy’s boat, PT-109.
Early Legal Career
Back home after the war, White completed his law degree at Yale in 1946, finishing first in his class. He spent a year in Washington, DC, clerking for newly appointed Chief Justice Fred Vinson at the Supreme Court. That year he married Marion Stearns, who was the great-granddaughter of Colorado governor Frederick Pitkin and the daughter of University of Colorado president Robert L. Stearns. They later had two children, Charles and Nancy. During his year in Washington, White also became reacquainted with John F. Kennedy, who was starting his first term in the US House of Representatives.
In 1947 White returned to Colorado and joined the Denver law firm of Lewis, Grant, Newton, Davis & Henry, where he spent fourteen years in practice. He changed his policy of avoiding involvement in electoral politics in 1960, when his old friend Kennedy was running for president and asked him to help the campaign in Colorado. White organized Colorado for Kennedy clubs before being asked to head the national Citizens for Kennedy group for the general election, which Kennedy won.
After Kennedy entered the White House, he named White as deputy attorney general. The Whites moved back to Washington, DC, where White was second-in-command under Robert F. Kennedy at the Department of Justice. White did daily departmental administrative work, recruited new lawyers, helped select federal court nominees, and oversaw departmental initiatives in Congress. As the Civil Rights Movement gained strength, White also worked on federal efforts to prevent violence against peaceful protesters. In May 1961, he was on the ground in Alabama to supervise federal marshals and deputies sent to protect the Freedom Riders on their trip through the state.
In March 1962, President Kennedy nominated White to replace retiring Supreme Court associate justice Charles Whittaker. Calling him “the ideal New Frontier judge,” Kennedy noted that White had “excelled in everything he has attempted.” White was quickly confirmed by the Senate and took his seat on the Supreme Court on April 16, 1962, at the age of forty-four. He reportedly told one colleague that he was being “put out to pasture.”
During White’s thirty-one years on the Supreme Court, the institution experienced a substantial transformation from the height of the liberal Court under Chief Justice Earl Warren in the 1960s until White was the only Democratic nominee remaining when he retired in the early 1990s. White himself was hard to categorize ideologically and has been described as a “nondoctrinaire pragmatist” who focused more on the specific facts of each case than on any sweeping constitutional doctrine. Similarly, White’s written opinions tended to be lean and matter-of-fact, without any rhetorical flourishes, in line with his view that the role of judges should be a modest one.
Nevertheless, White wrote almost 1,000 opinions during his three decades on the Court and tended to side with the conservatives. Broadly speaking, he believed in a strong but accountable federal government and, most important, judicial deference to the popularly elected branches of government.
As a result, White often found himself at odds with the Warren Court’s decisions, which inserted the Court forcefully into ongoing political debates. Most notably, White dissented from the majority in Miranda v. Arizona (1966), which required people in police custody to be advised of their rights to an attorney and against self-incrimination. In his dissent, he wrote that the majority opinion “is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent.”
Throughout his career, White was a strong critic of substantive due process, the doctrine by which courts place certain fundamental rights beyond the scope of government regulation or legislation. White made his view clear in his dissent in Roe v. Wade and Doe v. Bolton (1973), which declared a constitutional right to abortion. “I find nothing in the language or history of the Constitution to support the Court’s judgment,” he wrote. “This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.” White continued to dissent in cases involving abortion rights until the end of his career.
As the Court shifted to a more conservative orientation in the 1970s, White found himself more influential and more often in the majority. Perhaps his most famous opinion in these years came in Bowers v. Hardwick (1986), which upheld a state law criminalizing sodomy. As usual, White argued that there was no constitutional right to homosexual sex that would override state legislative prohibitions. (The decision was overturned by Lawrence v. Texas in 2003.)
Some legal scholars believe White’s most significant opinion came in Washington v. Davis (1976), which held that government policies needed to have discriminatory intent, not simply a discriminatory effect, in order to constitute an equal-protection violation. “Disproportionate impact is not irrelevant,” he wrote, “but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.” The decision was lamented by civil rights advocates because of the high burden it imposed to prove discrimination.
Despite similar votes to curb federal civil rights laws and end state and local affirmative action policies, White consistently supported federal power over states in civil rights matters, perhaps because of his experience in the Department of Justice during the Civil Rights Movement. “Surely the State may not leave in place policies . . . that serve to maintain the racial identifiability of its universities,” he wrote in his majority opinion in United States v. Fordice (1992), which required Mississippi to take affirmative action to better integrate its public universities, “if those policies can practicably be eliminated without eroding sound educational policies.”
White announced his retirement from the Supreme Court on March 19, 1993. As a retired justice, he continued to serve as a visiting judge on federal appeals courts, and he also led a commission to study the structure of the federal appeals courts. He sat in the front row of the Supreme Court gallery to watch oral arguments in Bush v. Gore (2000), which would be one of his final public appearances. In 2001 he closed his chambers because of ill health and moved back to Denver with his wife. He died of pneumonia on April 15, 2002, at the age of eighty-four. His funeral was held at St. John’s Cathedral, where he was interred.
White’s achievements in sports and the law merited him numerous honors during his life and after his death. In 1954 he was elected to the College Football Hall of Fame. The NFL Players’ Association’s community service award bore his name from 1967 to 2018. In 1990 the Byron R. White Center for the Study of American Constitutional Law was established at the University of Colorado Law School. In 1994 the newly renovated home of the US Court of Appeals for the Tenth Circuit in Denver was renamed the Byron White US Courthouse. In 2003 he was posthumously awarded the Presidential Medal of Freedom by George W. Bush.