Sarcastic justice put tart touch on conservatism

THE BALTIMORE SUN

WASHINGTON -- For 31 years, Byron R. White has cast votes on the Supreme Court that have proved, day after day, that presidents should not expect anything in return when they name a justice.

A brainy and crusty conservative put on the court by one of history's most liberal presidents, John F. Kennedy, Justice White has fit quite well -- comfortably, even -- into the rightward turn of the court over the past generation.

His streak of independence helped gain him a reputation among some as a maverick, an unpredictable justice. But as three decades passed, and the court shifted from liberal to conservative, Justice White could be found most of the time casting his votes for conservative results.

This term and last, for example, the justice's voting patterns have not differed markedly from those of the court's most conservative members: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Over the years, Justice White became the court's most impatient interrogator of lawyers at the lectern, growing bitingly sarcastic when he did not get immediate responses. Just last month, his voice dripping with disdain, he told one lawyer, "I think you're just not answering the question, and I don't want to waste your time by insisting that you do, so go right ahead."

Known around the courthouse for his almost practiced grumpiness, Justice White once called the court's police to his chambers when a court aide whom he knew, finding no one in the justice's outer offices, stuck his head into the main suite where Justice White was working alone.

A tart-tongued conversationalist, Justice White also did not hold back in public ceremony. He went to the White House to swear in Justice Thomas, only to lecture the White House and the new justice about holding the ceremony while the court was in mourning for the chief justice's wife.

Never overcoming his deep resentment when journalists insisted upon referring to him by his college football nickname, "Whizzer," Justice White once told a friend who had informed him of the news media's unhappiness over a series of negative Supreme Court rulings on their rights: "Well, the bastards deserve it." Although he joined the famous 1964 decision that first gave the news media constitutional protection in libel cases, he later said that ruling was wrong.

He is the only member of the court who refuses ever to describe the issues or the background of a decision he has written, leaving the tourists in the courtroom baffled as he recites only the name of the case and the result: affirmed or reversed. He said privately he thought it was a waste of time; he sits with his head buried in his papers as other justices tell about what they have written.

Although some scholars of the court have suggested that Justice White never settled long enough in any area of the law to allow himself to be classified as anything but a pragmatist, his work generally was a seldom-broken skein of conservatism, even if not harshly ideological.

When he did support liberal outcomes, from time to time over the years, the cases usually involved questions of race equality. But it was Justice White who wrote a sweeping decision, in 1976, that made it considerably more difficult to win race bias cases that had been filed under the Constitution's guarantee of equality.

The Constitution, the White opinion declared, outlaws only intentional acts of race bias, not acts that, in practical operation, have the effect of putting minorities at a disadvantage.

A justice's dissenting votes and remarks often say much about that judge's basic approach to the law, and that was true of Justice White's most conspicuous and most important dissents: 1966, in the case first requiring police to give "Miranda warnings" to suspects they are holding, and in 1973, when the court first established a woman's constitutional right to abortion.

The "Miranda" decision, requiring a police procedure that is now universally used by police -- even officers in every TV police show arrest -- led Justice White in dissent to protest that "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."

One of two dissenters in the abortion decision in Roe vs. Wade, he complained: "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."

He cast another dissent on abortion last June, when the court by a 5-4 vote partly reaffirmed Roe vs. Wade; he and the court's three most conservative members voted to overrule Roe entirely.

In January, Justice White voted with a 5-4 majority to bar the use of federal civil rights law to protect abortion clinics from blockaders.

The justice wrote the 5-4 decision in 1985 that essentially put a stop to the court's modern trend of constantly expanding individual rights by finding them within a broad "right of privacy." That was the decision that rejected, mostly because of the nation's history of revulsion at homosexuality, a claim that gay adults should have a constitutional right to engage in sexual conduct in private.

In no area of the court's work has Justice White been a more predictable figure than in decisions of recent years cutting back sharply on the rights of criminal suspects, including death row inmates. Justice White was the author of perhaps the most significant grant of power in modern history to police: the 1984 decision creating a sweeping exception to a 70-year-old rule that automatically barred from every criminal case any evidence that police got by illegal methods -- no matter how strong that evidence was.

So long as officers got the evidence with a search warrant and believed they were acting lawfully, it made no difference that the warrant actually was illegal, the court declared.

Justice White has been a consistent supporter of the death penalty since the Supreme Court reinstated that ultimate punishment in 1976. He voted, for example, to allow the states to have a mandatory death penalty for certain murders.

In 1982, a White opinion spoke for the court as it freed the states to prosecute aggressively anyone involved in the preparation or distribution of child pornography; that decision was one of few in history to create explicit exceptions to the First Amendment's broad guarantees of free expression.

POSSIBLE NOMINEES

Candidate: Richard S. Arnold

Born: March 26, 1936, Texarkana, Texas.

Currently: Judge, U.S. Court of Appeals, Little Rock.

Background: A longtime friend of Bill Clinton, Mr. Arnold is a graduate of Yale University and Harvard Law School. He served as a clerk to former Supreme Court Justice William Brennan and as an aide to Sen. Dale Bumpers of Arkansas before joining the Court of Appeals in 1980.

Legal Views: Moderate to liberal on almost all questions.

Candidate: Mario M. Cuomo

Born: June 15, 1932, New York City

Currently: Governor of New York

Background: New York's Democratic governor since 1983, he is the only name Mr. Clinton has mentioned publicly as a potential Supreme Court nominee. A devout Roman Catholic, Mr. Cuomo has been a defender of abortion rights.

Legal Views: Liberal.

Candidate: Judith S. Kaye

Born: Aug. 4, 1938, Monticello, N.Y.

Currently: Judge, New York State Court of Appeals. Recently promoted to chief judge.

Background: A graduate of Barnard College and New York University Law School, she worked as a lawyer in New York before her appointment to the Court of Appeals in 1983. A Democrat, she is also a friend of New York Gov. Mario M. Cuomo.

Legal Views: Generally liberal.

Candidate: Amalya L. Kearse

Born: June 11, 1937, Vauxhall, N.J.

Currently: Judge, U.S. Court of Appeals, New York.

Background: A graduate of Wellesley College and the University of Michigan Law School, she worked as a partner in the New York firm of Hughes Hubbard & Reed before going on the federal bench in 1979.

Legal Views: Moderate on most issues.

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