Byron White began his long judicial career in dissent, resisting the Rising tide of criminal procedure liberalism of the Warren Court, and ended it as the balance wheel of Rehnquist Court. In his 31 years on the Supreme Court, from 1962 to 1993, he was in the majority in 807 five-to-four decisions, more than any other justice in history, except for the wily William Brennan who served on the court for 34 years. White also has the signal distinction of being the only Democratic appointment to the Supreme Court since the end of World War II that profoundly disappointed his erstwhile partisan allies, even if there is little evidence that his performance disappointed his sponsors, John and Robert Kennedy. Beyond the fact that White refused to "grow" his jurisprudence from its New Deal origins to accommodate the latest cultural avant-garde enthusiasms of the juridical left, little is known about White and his jurisprudence is widely misunderstood. And for good reason.

Few members of the notoriously secretive institution have been more private or openly hostile to intrusions into his privacy than White, as Dennis J. Hutchinson, a 1975 clerk to White who now teaches constitutional history at the University of Chicago, ably demonstrates in The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. Upon the twenty-fifth anniversary of his ascension to the Supreme Court, White and his clerks spent several weekends methodically shredding twenty-five years worth of private court papers. When a law review editor contacted White's older brother Sam for information to be used in an issue dedicated to White's quarter-century on the bench, he received an ominous one-sentence telephone call from the justice only a minute later: "don't ever call any member of my family again." White's hostility to the media can be traced to his early career on the college gridiron at the University of Colorado, where a sportswriter coined the nickname, "Whizzer White," that White hated but which he would never lose.

White came of age at a time and in a place when public revelation and self-aggrandizement were scandalous. The second son of a sugar beat farmer in Wellington, Colorado, he was raised in the small quiet town, on the northern tier of the state, known for its scenic view of the snowcapped Rocky Mountains and its sometimes harsh weather. But it would be hard for a man who achieved so much so early in life not to attract wide attention, even at a time when the media was not as intrusive as it is today. An All-American football player at the University of Colorado, White signed with the Pittsburgh Pirates (forerunner of the Steelers) for the then-astonishing sum of $15,800 a year, the highest for a rookie in the nascent league. After amateur and professional athletic acclaim, White attended Oxford on a Rhodes Scholarship, graduated at the top of his Yale Law School class, and played a season with the Detroit Lions, all before clerking for Chief Justice Carl Vinson in 1946. At Oxford and later as a naval intelligence officer during World War II, White came into contact with John Kennedy, who in 1962 appointed White to the Supreme Court, only 18 months into his administration. Kennedy described White to Ben Bradlee as "the ideal New Frontier judge" -- intelligent and physically vigorous, a young accomplished family man.

The litany of White's accomplishments and his early rise to the court serve to obscure the lines of his jurisprudence, which he never made an attempt to so much so early in life not to attract wide attention, even at a time when the media was not as intrusive as it is today. An All-American football player at the University of Colorado, White signed with the Pittsburgh Pirates (forerunner of the Steelers) for the then-astonishing sum of $15,800 a year, the highest for a rookie in the nascent league. After amateur and professional athletic acclaim, White attended Oxford on a Rhodes Scholarship, graduated at the top of his Yale Law School class, and played a season with the Detroit Lions, all before clerking for Chief Justice Carl Vinson in 1946. nothing. Justice Felix Frankfurter privately predicted that White would be a little to the left of Potter Stewart, an Eisenhower appointee. Hutchinson's principal accomplishment is to discern from the mass of White's opinions a sound jurisprudential framework obscured by bulk of White's output (1,275 opinions in 31 years), and in doing so refute the assertion that White was unpredictable.

Although White was popularly described as a conservative jurist, this confounds the term as it is used to describe a specific interpretive philosophy with the judicial tradition which White came to exemplify. Today judicial conservatism is virtually synonymous with "original meaning," the method of constitutional interpretation that holds that the Constitution means only what it was understood to mean by those whose assent made it law. This has certain implications, among them that the Congress's powers are limited to those enumerated, that the three branches of federal government and their powers are strictly separated, and that the states retain inviolable spheres of sovereignty. In this sense, White was not a conservative at all. Where, say, Justice Antonin Scalia would subscribe to these general notions, White would not. For instance, while Scalia believes that the law permitting the appointment of Independent Counsels violates the separation of powers doctrine (Morrison v. Olson), White sees it as a permissible experimentation with the form of government. And though Scalia believes that the powers of Congress are, however tangentially, limited (Lopez v. United States) and that the states retain areas of discretion where the Congress may not intrude (Printz v. United States), White views the powers of the Congress as essentially unlimited (Katzenbach v. McClung) and the states as retaining no sovereignty that the Congress is obliged to respect (Garcia v. San Antonio Metro. Transit Authority). Although Hutchinson views "New Deal liberal" and "pragmatist" As imperfect labels, his carefully wrought and insightful analysis of White's jurisprudence nonetheless establishes that they are fair and roughly approximate descriptions of Justice White.

In its judicial aspect the New Deal generally sought to eliminate In its judicial aspect the New Deal generally sought to eliminate restrictions on the exercise of federal power. These breaks on government power were exemplified early in this century by an activist libertarian Supreme Court's invocation of natural rights and non-textual notions of substantive due process to strike economic regulation. Lochner v. New York, where the court struck down regulations on the working hours of bakers as a violation of their liberty to contract their labor, is perhaps the most famous bugbear of New Dealers. But restrictions also came in the form of the enumerated powers doctrine and in the form of early criminal procedure cases which, as Professor Akhil Reed Amar of Yale has noted, invoked natural law and private property rights, and thus restricted the government's policing powers. All of these, in one way or another, restricted federal action. Judges of New Deal era, then, had a distinctly negative ambition: To remove the restrictions on the exercise of federal power so that the Congress, acting with the Executive, could enact social reform.

The ambition of liberal judges changed, of course, with the rise of "the real Warren Court," which historian David P. Currie of the University of Chicago dates to the replacement of Justice Frankfurter by Arthur Goldberg late in 1962. "Willful judges," as Scalia describes them, were no longer content with deferring to the overtly political branches, but were now eager to enact social reform themselves. The criminal procedure cases of the Warren Court were animated by the ideas that policing by the states was institutionally racist and that crime was a manifestation of disease, not evil, and should be addressed as a public health concern. Steeped in the New Deal idea of the judicial function, however, White largely dissented from Warren Court's innovations. He dissented from Miranda v Arizona, which mandated the now famous warnings to criminal suspects; prefiguring contemporary arguments, he wrote "there will not be a gain, but a loss, in human dignity" because under Miranda some criminals will be returned to the street to repeat their crimes.. White would also labor to limit the scope of rule excluding from trial illegally obtained evidence, and would dissent from Robinson v. California, where the court struck down a California statute criminalizing narcotics addiction. The court said that the state could not punish a person's status as an addict, only his conduct; White, sensibly enough, pointed out that addiction accrues through continuous willful behavior.

White was a pragmatist. He didn't believe that the provisions of the Bill of Rights had a "single meaning" or that constitutional provisions could be measured like the provisions of a deed, in "metes and bounds," but he was insistent that constitutional innovations be small and slow, and linked in a rational process. His father taught him that "You can't just stand on your rights all the time in a small town," and White had a lifetime aversion to "the angels of fashionable opinion," as Hutchinson memorably calls ideologues of various stripe. But White's contempt for philosophy could lead him astray. In Reitman v. Mulkey, White wrote the opinion of the court holding that California could not repeal a fair housing law because the repeal was motivated by animus toward minorities. In time, the case was precedent for the current Supreme Court's invalidation, in Romer v. Evans, of Colorado's attempt to deny homosexuals privileged legal status, and for a lower federal court to stay the implementation of California's Proposition 209, barring racial and sexual discrimination in state services. Pragmatism unguided by a philosophy lead White to judgments the long-term ill consequences of which he was not equipped to foresee.

However, White's small-step pragmatism and disdain for ideological enthusiasms kept him from joining most of the Warren and Burger Court's radical social agenda. Although he was willing to recognize, in Griswold v. Connecticut, a non-textual right to privacy permitting married couples access to contraception and even was willing to extend the right to non-married couples in Eisenstadt v. Baird, White famously and vigorously dissented from Roe v. Wade, privately telling people that he thought it was the only illegitimate decision the court made during his tenure. Perhaps just as upsetting to the votaries of judicial activism was White's majority opinion in Bowers v. Hardwick, which held that Georgia could constitutionally prohibit homosexual sodomy. White briskly dismissed the argument that homosexual activity was constitutionally protected: "[T]o claim that a right to engage in such conduct is deeply rooted in this nation's history and tradition or implicit in the concept of ordered liberty is, at best, facetious."

In an sense, White was precisely the type of conservative -- one who slows progress, but does not reverse it; one who ratifies the past, whatever its content -- that liberals claim they want. Except for Roe, White would later vote to reaffirm precedent, on the basis of stare decisis, with which he had earlier disagreed. And yet, few modern justices -- except, perhaps, Justice Clarence Thomas -- have been the object of so much vitriol as White. When White retired in 1993, Jeffrey Rosen of the New Republic called White "a perfect cipher" and a "mediocrity," Bruce Ackerman of Yale said he was "out of his depth," and the New York Times' Tom Wicker called him the "bitterest legacy of the Kennedy Administration." The best Calvin Trillin, writing in The Nation, could say of White was "We count his loyalty to team a boon/The other side might well select a loon" -- this in backhanded praise that White retired during a Democratic administration. These facile slurs betray the mercurial enthusiasms of the age more than they carefully trace the lineaments of Justice White's jurisprudence and are therefore more reflective of their authors than White's jurisprudence.

Certainly part of the hostility toward White was mere partisan disappointment -- much the same as Republicans were disappointed with, say, Justices Warren, Brennan or Blackmun and are with Justices Kennedy and Souter -- and White's refusal to adopt fashionable opinion as his own or write it into the Constitution. White's taciturn demeanor and terse writing style -- in which he evidently did not realize that an important function of an opinion is to justify the judgment made and to provide guidance for the future -- also were part of the problem.

But part of the hostility has to be attributable to White's refusal to Accord the media privileged protections he did not believe the Constitution warranted. (He told a friend in Denver that too many judges decide cases with the shibboleth "The First Amendment, therefore!" -- the law is unconstitutional.) Although White joined New York Times v. Sullivan, in which the court provided the media with substantial protection from libel suits, he would long regret it, noting that the republic had a vigorous press before Sullivan. In later cases he would hold that reporters could be compelled to reveal their sources to grand juries (Brazburg v. Hayes), that newsrooms were subject to reasonable searches with a warrant (Zurcher v. Stanford Daily), and that discovery of outakes and unpublished material was permissible in a libel suit (Herbert v. Lando).

In many ways White is entirely alien to today's culture, popular and legal. He could separate his private preferences from the demands of his office (privately in favor of abortion rights, he scorned Roe v. Wade). He was private and unassuming, dismissive of his accomplishments, and quietly went about his work, even though his accomplishments genuinely merited acclaim. In this gamely written and at time elegant book -- wisely subtitled "a portrait," perhaps because so little is known of White's early life -- Hutchinson demonstrates that White, whatever his flaws, was a faithful judge; and in the tumultuous age through which we pass, he was better than most.