WEBVTT 00:00:00.000 --> 00:00:02.899 Picture this for a second. It is a Sunday afternoon 00:00:02.899 --> 00:00:07.120 in the late 1930s. You are a superstar athlete 00:00:07.120 --> 00:00:08.820 playing in the National Football League. You're 00:00:08.820 --> 00:00:10.939 carrying the ball. You're taking these massive 00:00:10.939 --> 00:00:13.240 hits from linebackers and you're leading the 00:00:13.240 --> 00:00:15.759 entire league in rushing yards in front of, yo, 00:00:16.059 --> 00:00:19.320 tens of thousands of screaming fans. And the 00:00:19.320 --> 00:00:21.660 game ends. But instead of celebrating with the 00:00:21.660 --> 00:00:24.579 team, you just dodge the press, quietly pack 00:00:24.579 --> 00:00:27.980 a bag and board a train. Because on Monday morning, 00:00:28.100 --> 00:00:30.000 you have to be sitting in a classroom in Connecticut, 00:00:30.179 --> 00:00:32.579 ready to ace your final exams at Yale Law School. 00:00:32.979 --> 00:00:35.859 I mean, it sounds completely fabricated. Totally. 00:00:35.920 --> 00:00:37.799 If a screenwriter pitched that as a movie, a 00:00:37.799 --> 00:00:39.579 studio executive would laugh them right out of 00:00:39.579 --> 00:00:42.380 the room for being way too unrealistic. It just 00:00:42.380 --> 00:00:45.100 violates every rule we have about how human beings 00:00:45.100 --> 00:00:48.939 focus their time and energy. Exactly. Well, welcome 00:00:48.939 --> 00:00:51.820 to today's Deep Dive. Our mission today is to 00:00:51.820 --> 00:00:54.640 explore the mind boggling, just sprawling map 00:00:54.640 --> 00:00:58.119 of a life that belonged to Byron White. We are 00:00:58.119 --> 00:01:00.799 taking a whole stack of biographies and historical 00:01:00.799 --> 00:01:03.859 records to uncover how a small town Colorado 00:01:03.859 --> 00:01:07.459 farmhand became an NFL rushing leader, a World 00:01:07.459 --> 00:01:10.640 War Two intelligence officer, and finally a Supreme 00:01:10.640 --> 00:01:13.599 Court justice who served for over 30 years. Yeah, 00:01:13.599 --> 00:01:16.700 and he did it while defying basically every single 00:01:16.700 --> 00:01:19.280 easy political label along the way. He really 00:01:19.280 --> 00:01:21.590 did. But before we get into it, and because his 00:01:21.590 --> 00:01:23.489 career on the highest court touches on some of 00:01:23.489 --> 00:01:26.510 the most profound cultural shifts in modern history, 00:01:26.870 --> 00:01:28.810 we need to be very clear up front with you, the 00:01:28.810 --> 00:01:31.069 listener. Yes, very important. Today's sources 00:01:31.069 --> 00:01:33.250 contain highly politically charged content. We're 00:01:33.250 --> 00:01:34.989 talking about Supreme Court cases on abortion, 00:01:35.409 --> 00:01:37.670 LGBTQ rights, police powers, and civil rights. 00:01:37.750 --> 00:01:39.750 That's right. So we must explicitly state that 00:01:39.750 --> 00:01:42.349 we are impartially reporting on the content provided 00:01:42.349 --> 00:01:44.609 in these sources. We are not taking sides here. 00:01:44.750 --> 00:01:47.390 And we are not endorsing any viewpoints from 00:01:47.390 --> 00:01:49.829 either the left or the right. Our goal is simply 00:01:49.829 --> 00:01:52.650 to convey the ideas, the mechanics and the facts 00:01:52.650 --> 00:01:55.430 contained in the original source material. We're 00:01:55.430 --> 00:01:58.810 just here as guides to the historical record. 00:01:59.010 --> 00:02:01.810 The goal is to understand how this unique man's 00:02:01.810 --> 00:02:04.650 mind worked, you know, not to litigate the modern 00:02:04.650 --> 00:02:07.150 politics of his decisions. Well said. So, OK, 00:02:07.230 --> 00:02:09.150 let's unpack this. Usually we hear about people 00:02:09.150 --> 00:02:12.469 who are experts in one field. To reach the absolute 00:02:12.469 --> 00:02:14.629 pinnacle of any profession, it requires this 00:02:14.629 --> 00:02:17.110 laser focus that excludes almost everything else. 00:02:17.949 --> 00:02:21.150 But Byron White seemingly conquered four entirely 00:02:21.150 --> 00:02:24.310 distinct arenas of American life. And to understand 00:02:24.310 --> 00:02:27.270 how his complex, highly pragmatic legal mind 00:02:27.270 --> 00:02:29.550 worked later in life, we can't start at Yale. 00:02:30.069 --> 00:02:31.849 And we can't start at the Supreme Court either. 00:02:32.189 --> 00:02:34.490 We actually have to start in the dirt. Literally 00:02:34.490 --> 00:02:36.469 in the dirt. Yeah, understand the mechanisms 00:02:36.469 --> 00:02:38.569 of his life You have to look at the relentless 00:02:38.569 --> 00:02:40.990 almost punishing work ethic that was forged in 00:02:40.990 --> 00:02:43.370 his childhood That environment is the bedrock 00:02:43.370 --> 00:02:45.770 of everything that follows, right? So he was 00:02:45.770 --> 00:02:48.990 born in 1917 in Fort Collins, Colorado and raised 00:02:48.990 --> 00:02:51.629 in a tiny nearby farming town called Wellington 00:02:51.629 --> 00:02:54.650 His parents didn't finish high school, which 00:02:54.650 --> 00:02:56.770 you know was fairly common for rural agricultural 00:02:56.770 --> 00:03:00.330 communities at the time but They heavily emphasize 00:03:00.330 --> 00:03:03.169 the absolute necessity of education for their 00:03:03.169 --> 00:03:05.210 children. But they were I mean, they were dealing 00:03:05.210 --> 00:03:08.289 with the massive economic decline of the 1920s. 00:03:08.289 --> 00:03:10.590 Oh, absolutely. So White wasn't just going to 00:03:10.590 --> 00:03:13.310 school. He was working grueling manual labor 00:03:13.310 --> 00:03:16.550 jobs just to keep the family afloat. We were 00:03:16.550 --> 00:03:19.169 talking about harvesting sugar beets from freezing 00:03:19.169 --> 00:03:22.569 mud, shoveling coal, swinging hammers on heavy 00:03:22.569 --> 00:03:24.870 construction sites. Yeah. He and his older brother 00:03:24.870 --> 00:03:27.430 even rented their own plot of land to farm. They 00:03:27.430 --> 00:03:30.050 spent exhaust. hours in the fields before and 00:03:30.050 --> 00:03:32.569 after school. Wow. And that kind of labor, it 00:03:32.569 --> 00:03:35.150 strips away any room for pretension. It paints 00:03:35.150 --> 00:03:37.969 a picture of this incredibly taciturn quiet kid. 00:03:38.430 --> 00:03:40.169 People who grew up with him described a young 00:03:40.169 --> 00:03:42.770 man who measured every single word, rarely showed 00:03:42.770 --> 00:03:45.069 emotion, and revealed almost nothing about his 00:03:45.069 --> 00:03:47.870 internal life. But underneath that quiet stoic 00:03:47.870 --> 00:03:51.460 exterior was just a machine. He graduated high 00:03:51.460 --> 00:03:54.300 school in 1934 as the valedictorian, right? He 00:03:54.300 --> 00:03:56.560 had the highest grades in the school's entire 00:03:56.560 --> 00:03:59.379 history and his guiding motto was completely 00:03:59.379 --> 00:04:02.909 devoid of grand philosophy. He just said Do your 00:04:02.909 --> 00:04:05.330 work and don't be late for dinner. Which is such 00:04:05.330 --> 00:04:08.389 a striking worldview. It's entirely utilitarian. 00:04:08.650 --> 00:04:12.110 And he takes that exact same grim determination 00:04:12.110 --> 00:04:15.090 to the University of Colorado Boulder on a scholarship. 00:04:15.250 --> 00:04:17.810 Yeah. There is no traditional college experience 00:04:17.810 --> 00:04:21.370 for him, no sprawling social life. He compartmentalizes 00:04:21.370 --> 00:04:24.129 his time with ruthless efficiency. It's just 00:04:24.129 --> 00:04:27.160 working. studying, and athletics. And his athletic 00:04:27.160 --> 00:04:29.480 career is where the story takes its first highly 00:04:29.480 --> 00:04:32.199 visible turn. He approaches football with the 00:04:32.199 --> 00:04:34.459 same mechanical precision he applied to harvesting 00:04:34.459 --> 00:04:37.579 beets. Exactly. He becomes a consensus all -American 00:04:37.579 --> 00:04:40.399 halfback for the Colorado Buffaloes. The student 00:04:40.399 --> 00:04:42.420 newspaper gives him the nickname Whizzer White. 00:04:43.100 --> 00:04:46.199 And by 1937, his senior year, he finishes as 00:04:46.199 --> 00:04:48.519 the runner -up for the Heisman Trophy. But he 00:04:48.519 --> 00:04:50.240 doesn't let the noise of the stadium distract 00:04:50.240 --> 00:04:52.949 him from the classroom. He graduates as class 00:04:52.949 --> 00:04:55.629 valedictorian again. Unbelievable. And he earns 00:04:55.629 --> 00:04:58.829 a Rhodes Scholarship to study at Oxford University. 00:04:59.230 --> 00:05:01.889 But he actually defers Oxford for a year because 00:05:01.889 --> 00:05:04.470 he gets drafted into the National Football League 00:05:04.470 --> 00:05:07.069 by the Pittsburgh Pirates. The franchise that 00:05:07.069 --> 00:05:09.670 eventually becomes the Steelers. Right. And he 00:05:09.670 --> 00:05:14.329 signs a contract for $15 ,800. In the context 00:05:14.329 --> 00:05:16.970 of the late 1930s coming out of the Great Depression, 00:05:16.970 --> 00:05:19.009 that makes him the highest paid player in the 00:05:19.009 --> 00:05:23.189 entire NFL. Yeah. And in his rookie season, he 00:05:23.189 --> 00:05:25.310 leaves the entire league in rushing yards. And 00:05:25.310 --> 00:05:27.310 after that season, he finally goes over to Oxford. 00:05:27.910 --> 00:05:30.029 And the sources note that he studied 14 hours 00:05:30.029 --> 00:05:32.850 a day. 14 hours? Yeah, he essentially applied 00:05:32.850 --> 00:05:35.990 a coal -shoveling work ethic to elite British 00:05:35.990 --> 00:05:38.850 academia. He outworked virtually every other 00:05:38.850 --> 00:05:41.529 Rhodes scholar in his cohort. But then World 00:05:41.529 --> 00:05:43.769 War II breaks out in Europe, interrupting his 00:05:43.769 --> 00:05:46.050 studies. So he returns to the United States and 00:05:46.050 --> 00:05:47.990 enrolls at Yale Law School. And this is where 00:05:47.990 --> 00:05:50.850 my brain just short circuits. While he is enrolled 00:05:50.850 --> 00:05:53.170 at Yale Law, one of the most demanding academic 00:05:53.170 --> 00:05:55.730 environments on the planet, he decides he still 00:05:55.730 --> 00:05:57.949 has some physical bandwidth left over. Of course 00:05:57.949 --> 00:06:00.610 he does. So he joins the Detroit Lions for the 00:06:00.610 --> 00:06:04.250 1940 and 1941 seasons, and he leads the NFL in 00:06:04.250 --> 00:06:07.449 rushing again. I mean, it is exactly like a superhero's 00:06:07.449 --> 00:06:10.360 secret identity. You put on the helmet. and dominate 00:06:10.360 --> 00:06:12.720 professional athletes on the gridiron, and then 00:06:12.720 --> 00:06:15.100 you quietly slip back into the law library to 00:06:15.100 --> 00:06:18.560 dissect centuries of jurisprudence. It's an unprecedented 00:06:18.560 --> 00:06:21.279 synthesis of physical capability and intellectual 00:06:21.279 --> 00:06:24.920 horsepower, and it's that specific rare combination 00:06:24.920 --> 00:06:27.259 that inevitably brings him into the orbit of 00:06:27.259 --> 00:06:30.819 other highly ambitious elite figures, which sets 00:06:30.819 --> 00:06:33.459 up the next major phase of his life, his shift 00:06:33.459 --> 00:06:36.560 from a highly successful private citizen to a 00:06:36.560 --> 00:06:38.560 public servant. Right, the Kennedy connection. 00:06:38.639 --> 00:06:41.160 Because while he was at Oxford, before the war, 00:06:41.459 --> 00:06:43.180 he had a chance meeting with Joseph Kennedy, 00:06:43.420 --> 00:06:46.019 the U .S. ambassador to the UK, and his son, 00:06:46.339 --> 00:06:48.759 the future president, John F. Kennedy. But before 00:06:48.759 --> 00:06:50.800 that relationship could truly bear fruit, the 00:06:50.800 --> 00:06:53.139 United States enters World War II. Right. And 00:06:53.139 --> 00:06:55.160 White's military service is another fascinating 00:06:55.160 --> 00:06:57.120 chapter. He originally wanted to join the Marines, 00:06:57.180 --> 00:06:59.300 but he was kept out because he was colorblind. 00:06:59.399 --> 00:07:01.579 Oh, wow. So he joins naval intelligence instead 00:07:01.579 --> 00:07:04.680 and deploys to the Pacific Theater. And the historical 00:07:04.680 --> 00:07:07.709 coincidences here are just staggering. He is 00:07:07.709 --> 00:07:09.970 stationed near the Solomon Islands and he actually 00:07:09.970 --> 00:07:12.389 ends up writing the official military intelligence 00:07:12.389 --> 00:07:15.810 report on the sinking of JFK's patrol torpedo 00:07:15.810 --> 00:07:19.410 boat, the PT -109. You cannot make that up. He 00:07:19.410 --> 00:07:21.569 writes the report on Kennedy's boat. Yeah. So 00:07:21.569 --> 00:07:24.610 the war ends. He survives and he returns to finish 00:07:24.610 --> 00:07:27.709 his degree at Yale Law. He graduates first in 00:07:27.709 --> 00:07:30.250 his class. He lands a prestigious clerkship with 00:07:30.250 --> 00:07:31.949 the Chief Justice of the United States Supreme 00:07:31.949 --> 00:07:35.860 Court. His resume is flawless. But then he makes 00:07:35.860 --> 00:07:38.579 a choice that completely baffles me. What's that? 00:07:38.779 --> 00:07:41.040 He turns down all the glamorous high paying white 00:07:41.040 --> 00:07:43.160 shoe law firms in New York and Washington, D 00:07:43.160 --> 00:07:45.800 .C. He goes back to Denver, Colorado to work 00:07:45.800 --> 00:07:48.399 as a transactional attorney. Wait, I'm genuinely 00:07:48.399 --> 00:07:50.360 confused here. This guy is an absolute rock star. 00:07:50.439 --> 00:07:52.899 He's an NFL legend, a war hero, a Supreme Court 00:07:52.899 --> 00:07:55.220 clerk. Why on earth is he hiding in an office 00:07:55.220 --> 00:07:57.800 in Denver drafting dry business contracts instead 00:07:57.800 --> 00:08:00.459 of becoming a high profile, dramatic trial lawyer? 00:08:00.680 --> 00:08:02.860 What's fascinating here is how perfectly that 00:08:02.860 --> 00:08:05.379 choice aligns with his personality. Think about 00:08:05.379 --> 00:08:08.269 it. Trial law is about persuasion. It's about 00:08:08.269 --> 00:08:11.269 theatrics, swaying a jury, painting a narrative. 00:08:11.769 --> 00:08:14.149 Okay, sure. Transactional law drafting contracts, 00:08:14.509 --> 00:08:16.370 setting up corporate structures, negotiating 00:08:16.370 --> 00:08:19.529 mergers is entirely about the text on the page. 00:08:19.930 --> 00:08:22.389 It's about practical outcomes and defining the 00:08:22.389 --> 00:08:24.959 exact rules of engagement. You aren't arguing 00:08:24.959 --> 00:08:27.459 grand philosophical theories in a transactional 00:08:27.459 --> 00:08:30.079 practice. You are figuring out exactly what a 00:08:30.079 --> 00:08:32.759 specific paragraph permits and what it forbids. 00:08:33.139 --> 00:08:35.159 Ah, so it's the legal version of do your work 00:08:35.159 --> 00:08:37.139 and don't be late for dinner. You build the machine, 00:08:37.480 --> 00:08:40.039 make sure the gears turn, and you go home. Precisely. 00:08:40.480 --> 00:08:42.840 And that nuts and bolts fact -specific approach 00:08:42.840 --> 00:08:45.399 heavily influenced his later judicial style. 00:08:45.679 --> 00:08:47.860 But he doesn't stay in private practice forever. 00:08:48.139 --> 00:08:51.100 In 1960, John F. Kennedy is running for president. 00:08:51.240 --> 00:08:53.759 And they know each other. Right. White uses his 00:08:53.759 --> 00:08:56.039 old wizard football fame and his organizational 00:08:56.039 --> 00:08:58.440 skills to manage Kennedy's campaign in Colorado. 00:08:59.200 --> 00:09:01.259 JFK wins the White House and brings White to 00:09:01.259 --> 00:09:03.519 Washington, appointing him as the deputy attorney 00:09:03.519 --> 00:09:06.179 general. Which means he is the number two guy 00:09:06.179 --> 00:09:08.340 at the Justice Department. Exactly. And he's 00:09:08.340 --> 00:09:11.779 doing the heavy lifting. In 1961, he is the one 00:09:11.779 --> 00:09:13.620 dispatched to take the lead in protecting the 00:09:13.620 --> 00:09:16.240 Freedom Riders in the South, directly negotiating 00:09:16.240 --> 00:09:18.500 with the governor of Alabama. to try and secure 00:09:18.500 --> 00:09:21.879 their physical safety amidst violent mobs. Kennedy 00:09:21.879 --> 00:09:24.679 relies on him completely. He famously said White 00:09:24.679 --> 00:09:29.379 excels at everything. And so in 1962, JFK nominates 00:09:29.379 --> 00:09:32.720 Byron White to the Supreme Court, which raises 00:09:32.720 --> 00:09:36.159 a massive question. Given this deep personal 00:09:36.159 --> 00:09:39.519 loyalty to JFK and his central role in a Democratic 00:09:39.519 --> 00:09:42.120 administration, did that guarantee White would 00:09:42.120 --> 00:09:44.440 just be a rubber stamp for liberal policies once 00:09:44.440 --> 00:09:47.009 he got on the court? That was exactly the assumption 00:09:47.009 --> 00:09:48.970 of the Kennedy administration and its supporters. 00:09:49.129 --> 00:09:51.029 They believed they were installing a reliable 00:09:51.029 --> 00:09:54.409 progressive vote. But White proved to be incredibly 00:09:54.409 --> 00:09:57.110 difficult to pin down ideologically. He severely 00:09:57.110 --> 00:09:59.370 disappointed many of his former political allies. 00:09:59.690 --> 00:10:01.610 And that friction starts to show up very clearly 00:10:01.610 --> 00:10:03.649 in his controversial views on law enforcement. 00:10:04.090 --> 00:10:06.169 Right. He ends up being this pragmatic center. 00:10:06.710 --> 00:10:09.470 White was entirely comfortable with broad federal 00:10:09.470 --> 00:10:11.889 government power when it came to regulating the 00:10:11.889 --> 00:10:14.350 economy, very much in the tradition of the New 00:10:14.350 --> 00:10:18.360 Deal. but he... consistently, almost aggressively, 00:10:18.820 --> 00:10:21.120 voted against creating new constitutional restrictions 00:10:21.120 --> 00:10:23.580 on police officers. The defining example here 00:10:23.580 --> 00:10:27.399 is the landmark 1966 case, Miranda v. Arizona. 00:10:27.440 --> 00:10:29.899 Oh, yeah. This is the famous ruling that requires 00:10:29.899 --> 00:10:33.240 police to read suspects their rights before interrogation. 00:10:33.340 --> 00:10:36.080 It was championed by the liberal wing of the 00:10:36.080 --> 00:10:38.360 court as a necessary protection against police 00:10:38.360 --> 00:10:41.659 coercion. But Byron White fiercely dissented. 00:10:41.879 --> 00:10:43.639 Here's where it gets really interesting. I want 00:10:43.639 --> 00:10:46.690 to push back on this for a second. Today, modern 00:10:46.690 --> 00:10:49.029 conventional wisdom almost universally views 00:10:49.029 --> 00:10:51.669 restricting police power as the primary way we 00:10:51.669 --> 00:10:54.090 protect individual civil rights. How on earth 00:10:54.090 --> 00:10:56.450 could a judge who is just down in Alabama protecting 00:10:56.450 --> 00:10:58.889 freedom riders argue that giving police more 00:10:58.889 --> 00:11:01.309 leeway actually protects the individual? What 00:11:01.309 --> 00:11:03.700 is the logic there? The logic comes straight 00:11:03.700 --> 00:11:06.879 from his gritty real world experience. White 00:11:06.879 --> 00:11:09.940 wasn't looking at the law as an abstract academic 00:11:09.940 --> 00:11:11.759 battle between the state and the individual. 00:11:12.419 --> 00:11:14.700 He believed the fundamental primary function 00:11:14.700 --> 00:11:17.299 of the law is to protect the physical safety 00:11:17.299 --> 00:11:20.490 of the community. In his Miranda dissent, he 00:11:20.490 --> 00:11:22.450 argued that if you tie the hands of the police 00:11:22.450 --> 00:11:25.129 with rigid new rules, rules he pointed out were 00:11:25.129 --> 00:11:27.669 not explicitly written anywhere in the Constitution, 00:11:28.169 --> 00:11:30.350 by the way, you inevitably make it harder to 00:11:30.350 --> 00:11:32.990 catch criminals. Right. And if dangerous individuals 00:11:32.990 --> 00:11:35.389 are put back on the street because of a procedural 00:11:35.389 --> 00:11:38.429 misstep, the fundamental rights and safety of 00:11:38.429 --> 00:11:41.490 everyday law -abiding citizens are violated. 00:11:41.720 --> 00:11:45.000 So to his mind, aggressive police practices weren't 00:11:45.000 --> 00:11:47.240 a threat to liberty. They were the shield that 00:11:47.240 --> 00:11:49.100 allowed liberty to exist for the majority of 00:11:49.100 --> 00:11:52.039 the public. Exactly. He viewed the court's ruling 00:11:52.039 --> 00:11:55.039 as a dangerous experiment that prioritized a 00:11:55.039 --> 00:11:57.379 theoretical right over concrete public safety. 00:11:58.200 --> 00:12:00.519 But his reluctance to restrict the police wasn't 00:12:00.519 --> 00:12:03.080 just about his views on criminal law. It was 00:12:03.080 --> 00:12:05.720 anchored in a much deeper fundamental judicial 00:12:05.720 --> 00:12:09.279 philosophy. He had an absolute visceral allergy 00:12:09.279 --> 00:12:12.639 to a legal concept known as substantive due process. 00:12:13.200 --> 00:12:15.580 And this is the key to decoding his entire career 00:12:15.580 --> 00:12:18.200 on the bench. You need to define this. What exactly 00:12:18.200 --> 00:12:20.919 is substantive due process and why did he hate 00:12:20.919 --> 00:12:23.480 it so much? It is a critical doctrine to understand. 00:12:23.519 --> 00:12:25.840 So in the Constitution, the due process clause 00:12:25.840 --> 00:12:28.059 guarantees that the government cannot take away 00:12:28.059 --> 00:12:31.419 your life, liberty, or property without due process 00:12:31.419 --> 00:12:33.759 of law. Right, we've all heard that. Historically, 00:12:33.840 --> 00:12:36.059 that meant procedural fairness. You get a fair 00:12:36.059 --> 00:12:38.100 trial, a chance to defend yourself, things like 00:12:38.100 --> 00:12:40.419 that. But substantive due process is a doctrine 00:12:40.240 --> 00:12:42.559 where the judiciary looks at the word liberty 00:12:42.559 --> 00:12:45.820 and reads unwritten substantive rights into it. 00:12:45.820 --> 00:12:48.159 Oh, I see. It's the court saying the text of 00:12:48.159 --> 00:12:50.440 the Constitution doesn't explicitly mention this 00:12:50.440 --> 00:12:53.000 specific right, but it is deeply implied by the 00:12:53.000 --> 00:12:55.179 broader concept of liberty, so we are going to 00:12:55.179 --> 00:12:58.230 protect it. And white. utterly rejected that. 00:12:58.649 --> 00:13:00.570 In his very first published opinion, a dissent 00:13:00.570 --> 00:13:04.009 in a case called Robinson v. California, he openly 00:13:04.009 --> 00:13:07.210 criticized the court for imposing its own philosophical 00:13:07.210 --> 00:13:09.750 predilections onto the states rather than just 00:13:09.750 --> 00:13:11.769 reading the law as it was written. He maintained 00:13:11.769 --> 00:13:14.470 that hostility towards substantive due process 00:13:14.470 --> 00:13:18.230 for his entire 31 -year tenure, and it drove 00:13:18.230 --> 00:13:20.929 some of his most famous and polarizing opinions. 00:13:21.370 --> 00:13:24.009 It is the exact reason she dissented in Roe v. 00:13:24.090 --> 00:13:27.799 Wade in 1973. Right. Roe utilized substantive 00:13:27.799 --> 00:13:30.340 due process to find an implied right to privacy 00:13:30.340 --> 00:13:33.240 that protected abortion access. White dissented 00:13:33.240 --> 00:13:35.399 using incredibly sharp language, calling the 00:13:35.399 --> 00:13:37.480 majority's decision an exercise in raw judicial 00:13:37.480 --> 00:13:40.179 power. Because the right was not explicitly detailed 00:13:40.179 --> 00:13:42.379 in the text, he believed the court had no authority 00:13:42.379 --> 00:13:44.919 to strike down state laws prohibiting it. And 00:13:44.919 --> 00:13:47.919 he applied that exact same logic over a decade 00:13:47.919 --> 00:13:52.019 later. In 1986, he wrote the majority opinion 00:13:52.019 --> 00:13:55.009 in Bowers v. Hardwick. In that case, the court 00:13:55.009 --> 00:13:57.929 upheld state laws that banned homosexual conduct. 00:13:58.570 --> 00:14:01.450 White's reasoning was identical. He argued that 00:14:01.450 --> 00:14:03.269 the court should not be in the business of inventing 00:14:03.269 --> 00:14:05.629 or discovering new fundamental rights that have 00:14:05.629 --> 00:14:07.750 no explicit roots in the language or historical 00:14:07.750 --> 00:14:10.159 design of the Constitution. Yes. And while the 00:14:10.159 --> 00:14:12.779 court later overnailed Bowers in the 2003 case, 00:14:12.799 --> 00:14:15.460 Lawrence v. Texas, White's opinion in Bowers 00:14:15.460 --> 00:14:17.879 perfectly encapsulated his judicial mechanics. 00:14:18.320 --> 00:14:20.700 He was highly deferential to state legislatures 00:14:20.700 --> 00:14:23.220 and profoundly skeptical of judges declaring 00:14:23.220 --> 00:14:25.340 unwritten rights. So what does this all mean? 00:14:25.539 --> 00:14:27.960 How do we visualize this approach? Think of White 00:14:27.960 --> 00:14:30.080 as a software developer who have been hired to 00:14:30.080 --> 00:14:33.379 debug a massive piece of legacy code. Oh, I like 00:14:33.379 --> 00:14:35.590 this. When he looks at the program, he doesn't 00:14:35.590 --> 00:14:37.950 care what the original programmers intended the 00:14:37.950 --> 00:14:40.470 app to do. He doesn't care if adding a new feature 00:14:40.470 --> 00:14:42.710 would make the app fairer or more user -friendly. 00:14:43.070 --> 00:14:45.590 He only cares about executing the exact lines 00:14:45.590 --> 00:14:48.370 of code that are explicitly written on the screen. 00:14:48.830 --> 00:14:51.250 If the command isn't in the code, the program 00:14:51.250 --> 00:14:53.169 shouldn't run it. It's like playing a board game 00:14:53.169 --> 00:14:55.409 where you only use the printed rulebook. That 00:14:55.409 --> 00:14:58.570 is a brilliant way to frame textualism. And if 00:14:58.570 --> 00:15:00.889 we connect this to the bigger picture, it explains 00:15:00.889 --> 00:15:04.769 the why behind his rigidity. White deeply feared 00:15:04.769 --> 00:15:07.850 that if unelected judges can just invent or imply 00:15:07.850 --> 00:15:10.669 rights without express constitutional authority, 00:15:11.110 --> 00:15:13.590 they are essentially seizing the power of governance 00:15:13.590 --> 00:15:16.500 away from the people. Right. In his view of a 00:15:16.500 --> 00:15:18.840 healthy democracy, if society wants a new right 00:15:18.840 --> 00:15:21.159 recognized, they need to do the hard work of 00:15:21.159 --> 00:15:23.360 going to their legislature, debating it, and 00:15:23.360 --> 00:15:26.000 passing a law. They shouldn't be asking nine 00:15:26.000 --> 00:15:28.259 lifetime appointees to find a shortcut hidden 00:15:28.259 --> 00:15:30.600 in the margins of the Constitution. Which brings 00:15:30.600 --> 00:15:33.539 us to a fascinating paradox. Because of this 00:15:33.539 --> 00:15:36.440 strict adherence to the printed code, he reached 00:15:36.440 --> 00:15:39.299 seemingly contradictory middle -course conclusions 00:15:39.299 --> 00:15:42.259 on the other massive social issues of his era. 00:15:43.070 --> 00:15:45.450 Depending on the exact wording of a specific 00:15:45.450 --> 00:15:48.090 statute, his votes would completely break the 00:15:48.090 --> 00:15:50.549 modern political spectrum. Let's look at civil 00:15:50.549 --> 00:15:53.340 rights and race. On one hand, White consistently 00:15:53.340 --> 00:15:55.399 supported the court's aggressive attempts to 00:15:55.399 --> 00:15:58.200 fully desegregate public schools, going so far 00:15:58.200 --> 00:16:00.960 as to support highly controversial forced busing 00:16:00.960 --> 00:16:03.980 measures to achieve integration. He also voted 00:16:03.980 --> 00:16:06.259 to uphold affirmative action and higher education 00:16:06.259 --> 00:16:09.840 in the famous 1978 bake case. OK, so a clear 00:16:09.840 --> 00:16:12.580 progressive track record on race. But then you 00:16:12.580 --> 00:16:14.919 look at a 1976 case called Runyon v. McCrary. 00:16:15.100 --> 00:16:17.259 The court's majority held that federal law actually 00:16:17.259 --> 00:16:19.139 prohibited private schools from discriminating 00:16:19.139 --> 00:16:21.860 on the basis of race. would assume White, the 00:16:21.860 --> 00:16:23.779 champion of public school integration, would 00:16:23.779 --> 00:16:26.799 agree. But he dissents. He dissents because he 00:16:26.799 --> 00:16:29.879 takes his magnifying glass to the specific text 00:16:29.879 --> 00:16:32.360 and the legislative history of the law in question, 00:16:32.639 --> 00:16:35.039 which was a post -Civil War statute known as 00:16:35.039 --> 00:16:38.379 the Ku Klux Klan Act. He read that specific code 00:16:38.379 --> 00:16:40.639 and argued that Congress had only designed it 00:16:40.639 --> 00:16:42.659 to prohibit state -sponsored discrimination, 00:16:42.840 --> 00:16:45.639 not the actions of private entities. I want to 00:16:45.639 --> 00:16:48.659 ask you, the listener, what stands out to you? 00:16:48.940 --> 00:16:51.679 about a judge who votes to uphold affirmative 00:16:51.679 --> 00:16:55.039 action but votes against a ban on private discrimination. 00:16:56.320 --> 00:16:59.000 White warned that if the court stretches a specific 00:16:59.000 --> 00:17:01.340 statute to make private racial discrimination 00:17:01.340 --> 00:17:04.079 illegal, they might inadvertently establish a 00:17:04.079 --> 00:17:06.460 precedent that bans voluntary self -segregation. 00:17:07.140 --> 00:17:09.220 He pointed out that citizens often choose to 00:17:09.220 --> 00:17:11.420 form private social clubs or advocacy groups 00:17:11.420 --> 00:17:13.759 that limit membership to specific demographics. 00:17:13.900 --> 00:17:16.539 He wasn't endorsing the morality of private discrimination. 00:17:16.779 --> 00:17:18.900 He was simply saying the specific law in front 00:17:18.900 --> 00:17:21.099 of him didn't give the court the mechanical authority 00:17:21.099 --> 00:17:24.740 to ban it. And you see this exact same hyper 00:17:24.740 --> 00:17:27.619 -focus on specific facts and proportional outcomes 00:17:27.619 --> 00:17:32.420 in his death penalty rulings. In the case Furman 00:17:32.420 --> 00:17:35.140 v. Georgia, White was part of the majority that 00:17:35.140 --> 00:17:37.680 effectively struck down capital punishment nationwide. 00:17:37.819 --> 00:17:39.920 Wow. OK. But he didn't do it because he thought 00:17:39.920 --> 00:17:42.000 the death penalty was inherently unconstitutional. 00:17:42.519 --> 00:17:45.440 He did it because the factual record showed it 00:17:45.440 --> 00:17:48.099 was being administered in a completely arbitrary, 00:17:48.359 --> 00:17:50.700 randomized way. Right. Because just four years 00:17:50.700 --> 00:17:53.319 later, in Gregg v. Georgia, after states had 00:17:53.319 --> 00:17:55.539 gone back and rewrote their laws to ensure the 00:17:55.539 --> 00:17:57.660 death penalty was applied with clear, structured 00:17:57.660 --> 00:18:01.259 guidelines, White voted to uphold it. And his 00:18:01.259 --> 00:18:03.539 textual analysis of the Eighth Amendment's ban 00:18:03.539 --> 00:18:06.500 on cruel and unusual punishment led him to slice 00:18:06.500 --> 00:18:09.440 the issue even finer. He believed the text required 00:18:09.440 --> 00:18:11.579 a punishment to be strictly proportional to the 00:18:11.579 --> 00:18:14.160 crime. Okay. So he believed executing individuals 00:18:14.160 --> 00:18:16.400 who committed murder as minors was constitutional, 00:18:16.619 --> 00:18:19.240 writing a dissent in Thompson v. Oklahoma. But 00:18:19.240 --> 00:18:21.259 he authored the majority opinion in Coker v. 00:18:21.339 --> 00:18:23.480 Georgia, declaring that applying the death penalty 00:18:23.480 --> 00:18:25.720 to someone who raped a minor but did not kill 00:18:25.720 --> 00:18:28.579 them was unconstitutional. Because death was 00:18:28.579 --> 00:18:30.819 not a proportional punishment. for a non -lethal 00:18:30.819 --> 00:18:33.559 crime. Exactly. From the outside, looking through 00:18:33.559 --> 00:18:36.240 a modern partisan lens, it looks like ideological 00:18:36.240 --> 00:18:40.069 whiplash. But the reality is Byron White wasn't 00:18:40.069 --> 00:18:43.509 inconsistent at all. He just absolutely refused 00:18:43.509 --> 00:18:46.089 to buy into sweeping ideological narratives. 00:18:46.490 --> 00:18:49.470 He took every single case, isolated the specific 00:18:49.470 --> 00:18:52.069 facts, looked at the exact wording of the statute 00:18:52.069 --> 00:18:54.549 and let the chips fall where they may. He was 00:18:54.549 --> 00:18:57.410 the ultimate legal mechanic just fixing the specific 00:18:57.410 --> 00:18:59.450 engine placed in front of him. Which is why his 00:18:59.450 --> 00:19:01.809 retirement and legacy are so distinct. He stepped 00:19:01.809 --> 00:19:04.329 down from the Supreme Court in 1993 during Bill 00:19:04.329 --> 00:19:07.170 Clinton's presidency. True to the stoic farm 00:19:07.170 --> 00:19:09.690 board he always was, his public reasoning for 00:19:09.690 --> 00:19:12.170 retiring was remarkably humble. He simply said 00:19:12.170 --> 00:19:13.869 that someone else should be permitted to have 00:19:13.869 --> 00:19:16.289 a like experience. He was replaced by Ruth Bader 00:19:16.289 --> 00:19:19.150 Ginsburg and his departure really marked the 00:19:19.150 --> 00:19:22.230 end of a specific era in American jurisprudence. 00:19:22.490 --> 00:19:24.890 When he retired, he was the last living member 00:19:24.890 --> 00:19:27.049 of the progressive Warren court and the very 00:19:27.049 --> 00:19:28.950 last justice who had been appointed by John F. 00:19:29.049 --> 00:19:31.890 Kennedy. He eventually passed away in 2002 at 00:19:31.890 --> 00:19:35.049 the age of 84. I love the quote from then Chief 00:19:35.049 --> 00:19:37.650 Justice William Rehnquist upon his passing. He 00:19:37.650 --> 00:19:40.089 quoted the poet Matthew Arnold saying that Byron 00:19:40.089 --> 00:19:42.269 White saw life steadily and he saw it whole. 00:19:42.730 --> 00:19:45.309 It's a fitting tribute to a remarkably complex 00:19:45.309 --> 00:19:48.049 figure and it gets to the heart of why you, the 00:19:48.049 --> 00:19:51.170 listener, should care about this deep dive. Byron 00:19:51.170 --> 00:19:54.150 White represents a bygone era of American history. 00:19:54.329 --> 00:19:57.250 His judicial mindset wasn't formed in a sterile 00:19:57.250 --> 00:19:59.690 academic bubble or groomed by an ideological 00:19:59.690 --> 00:20:02.130 think tank. Definitely not. It was forged by 00:20:02.130 --> 00:20:05.589 a wildly diverse, gritty life. From pulling sugar 00:20:05.589 --> 00:20:08.130 beets from the frozen ground to survive the Depression, 00:20:08.589 --> 00:20:10.470 to taking hits on the professional gridiron, 00:20:10.750 --> 00:20:12.950 to reading intelligence reports in a world war. 00:20:13.470 --> 00:20:15.990 That rugged, real -world pragmatism produced 00:20:15.990 --> 00:20:18.190 a legal mind that simply cannot be neatly boxed 00:20:18.190 --> 00:20:20.349 into our modern, hyper -polarized categories 00:20:20.349 --> 00:20:22.710 of left or right. Which leaves us with a fascinating 00:20:22.710 --> 00:20:25.400 final thought to ponder. We started this deep 00:20:25.400 --> 00:20:27.700 dive by marveling at his four distinct careers, 00:20:28.599 --> 00:20:31.559 the valedictorian farmhand, the NFL superstar, 00:20:31.720 --> 00:20:34.480 the naval intelligence officer, the Supreme Court 00:20:34.480 --> 00:20:37.240 justice. In today's highly specialized, deeply 00:20:37.240 --> 00:20:40.000 partisan world of judicial appointments, where 00:20:40.000 --> 00:20:42.119 candidates are strictly groomed from law school 00:20:42.119 --> 00:20:45.279 onward and their every written word is scrutinized 00:20:45.279 --> 00:20:49.880 for absolute ideological purity, could a polymath 00:20:49.880 --> 00:20:52.710 wildcard like Byron White a professional athlete 00:20:52.710 --> 00:20:55.230 and war hero with absolutely no clear political 00:20:55.230 --> 00:20:58.230 loyalty who just wanted to execute the code exactly 00:20:58.230 --> 00:21:01.029 as printed ever survive a modern Senate confirmation 00:21:01.029 --> 00:21:03.029 hearing. It's a profound question about what 00:21:03.029 --> 00:21:05.089 kind of life experience we value today and our 00:21:05.089 --> 00:21:07.390 leaders compared to what we valued then. Something 00:21:07.390 --> 00:21:09.450 to mull over. Until next time, keep digging, 00:21:09.670 --> 00:21:11.230 keep questioning, and thanks for joining us on 00:21:11.230 --> 00:21:11.829 this deep dive.