Byron White: Roe Decision an Exercise of Raw Judicial Power

In reviewing the life of former Supreme Court Justice Byron White, there is a grave injustice in understating what this ‘man for all seasons’ accomplished. As a high school senior, he graduated at the top of his class in Wellington, CO, not far from Ft. Collins. He also secured a nice scholarship to play football at the top college in the state, the University of Colorado in Boulder.

This young man would graduate at the top of his class in Boulder, while also accepting a prestigious Rhodes Scholarship to study at Oxford University. But, not before receiving the highest salary in the history of the NFL at that time. Then, to top it off, he would become the first rookie to lead the league in any category.  One of the greatest of that era, scholastically and athletically. Yeah, Byron White. What? Never heard of him? Ahh, well, you would not be alone there.

You see, having only named a few of Mr. White’s many achievements, this is not what that young man will be remembered for…unfortunately. What Byron White will be remembered for happened much later in his life. It came even many years after President John F. Kennedy successfully nominated White to be an Associate Justice to the Supreme Court in 1962. So with all of this going for him, why haven’t you heard of him? Well, it has everything to do with what he WILL be remembered for. You see, Justice White became the scourge to may on the left, along with their partners in crime, the MSM, for being the loudest dissenting voice on the 1973 landmark decision of Roe vs. Wade.

This was a ‘high crime’ punishable by making him obsolete and in the process, sweeping all of this great American’s accomplishments under the collective rug! So since the MSM won’t be talking about him in language that isn’t conspicuous, I’ll be more than happy to bring you up to speed…

After a short time studying at Oxford, White returned to the U.S. While enrolled at Yale University law School in 1939, White recorded the highest grades of the freshman class. He was then appointed to a highly sought after job on the Law Review. But he declined in order to “play football and make some money instead, ” he later recalled. White played the 1940-1941 season with the Detroit Lions, then continued law study during the summer at the University of Colorado. White signed another pro football contract for 1941-1942, but after the Japanese attack on Pearl Harbor he enlisted in the Navy. During World War II White was a naval intelligence officer in the South Pacific, winning two bronze stars for courage in action. He also renewed his acquaintance with another decorated officer, PT-boat commander John F. Kennedy, whom he first had met at Oxford.

And though he was a Kennedy-appointed justice, Byron White would soon develop a reputation as an independent spirit- an image that would be upheld by his voting record and correspondence during his time in the SCOTUS. Before the historic twin cases of Roe v. Wade and Doe v. Bolton, Justice White displayed his knack for going against the grain when it came to his decisions and opinions. The high profile case of Miranda vs. Arizona was an early indication of the justice developing a reputation as a wildcard. White did not want to place constitutional restrictions on officers. Justice White argued that the court had no “factual and textual bases” in the U.S. Constitution or in previous opinions of the court for the new rule.

“I have no desire whatsoever to share the responsibility for any such impact on the present criminal process,” White wrote. “In some unknown number of cases, the court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him … ”

As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

-Excerpt of Supreme Court Justice Byron White from his dissent of the landmark case of Roe vs. Wade, January 22, 1973

By the time the case of Roe v. Wade was argued by the justices, you would have thought the democrat nominated Byron White would have supported Roe. But as it turns out, he was only one of two justices (along with Justice William Rehnquist), that opposed the landmark case. Another surprise was the final vote for this historic case brought before the court. The vote on Roe vs. Wade was 7-2. Those justices supporting the case’s pro-abortion outcome were as follows, including the president nominating each and the president’s party affiliation:

  • Harry Blackmun (Nixon, R)
  • Warren Burger (Nixon, R)
  • William Douglas (FDR, D)
  • William Brennan (Eisenhower, R)
  • Potter Stewart (Eisenhower, R)
  • Thurgood Marshall (LBJ, D)
  • Lewis Powell (Nixon, R)

Those dissenting on Roe vs. Wade — only two – and both were not Republican-president-nominated to the Court:

  • Byron White (Kennedy, D)
  • William Rehnquist (Nixon, R; chief justice under Reagan, R)

But what if the Republican-leaning court would have rejected Roe v. Wade? And what if they would have listened to the scathing dissent of Justice White? Millions of lives would have been saved without question. But listen to the words of Byron White when speaking about the legal arguments for Roe. It is very surreal now to hear these words:

“At the heart of the controversy,” White proclaimed, “in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all,and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.” These arguments are still a major concern along with every decision point that goes into choosing to abort a child. 
White continues: “With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dis-entitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”
Byron White was not only spot on in his dissent from a constitutional standpoint, but he was bold enough and aware of the political landscape surrounding the case, that he uttered the phrase “exercise of raw judicial power”. Which was to say “all of you want this so badly, you will find whatever legal argument you can find to reason through a victory for Roe!” And it was stylish to do so with the ERA (Equal Rights Amendment) casting a large shadow on any case involving the empowerment of women at the time.
The other oversight was the oversight by all to not recognize The personhood of the unborn. There seemed to be association between the term fetus and non-person, almost as if it was just understood to be that way. But why then was the court in agreement on the unlawfulness of abortions in the third trimester? Did something fundamentally change? Or did the “unviable fetal matter” suddenly look more like a person after 6 months in the womb? But, I digress!
Byron White endured much scrutiny and second-guessing, along with his disloyalty to his party affiliation. But I see Byron White as someone that understood our laws and chose the outcome of cases based on the laws that were in place; not the letter next to the name of the president that nominated him. The irony to this is when White finally decided to retire, it was when a New Deal Democrat, Bill Clinton, was in the White House. Maybe a bit of guilt for his perceived disloyalty to party? To make matters worse, his replacement on the High Court was none other than Ruth Bader Ginsberg!
Yes, White was a Democrat. But the large majority of the Warren Court in 1973 were Republicans- four of which were appointed by Nixon. So nothing about Roe vs. Wade went according to any predictable outcome. It was a choice made by The Age of Aquarius, influenced by the ERA Movement, decided by a SCOTUS full of Rockefeller Republicans and one Democrat. And opposed by Ronald Reagan’s future Chief Justice. And a loan wildcard, independent, but registered Democrat named Byron White. Justice White died on April 15, 2002 to very little media fanfare. One news agency pointed out that actor Robert Urich, who died the next day received greater coverage than did Mr. White.
For me, his legacy will endure as the justice that could have turned the tide on this decision that still haunts this great nation. It also reminds me of how partisanship is so ugly, that many would turn on such an accomplished American that had achieved on so many levels. But it also teaches me that parties cannot and should not be trusted when it comes to important decisions. I give White credit for his effort. But in the end, the thing that turned the tide in Roe’s favor was the chance to make history by a court that choose to exercise raw judicial power over constitutional and founding principles to guide them. Here’s to you, Byron White. You spoke the words that someday may turn this whole case around. It won’t bring back 60 million dead babies. But if Roe v. Wade is ever revisited, you can bet the words and thoughts of Byron White will be invoked.
(Chris Gaines is an author and Editor-in-Chief of Patriot Gaines. He resides in the Cedar Valley of Northern Iowa with his wife, Jen, and two kids, Patrick & Megan.)

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