Justice White Steps Down

March 21, 1993

Supreme Court Justice Byron R. White told President Clinton on Friday he will retire at the end of this term. This ends a chapter in an interesting American life. Justice White was a college and pro football star. A Rhodes scholar. After Navy service in the South Pacific in World War II, private law practice in his native Colorado and campaign duty for John F. Kennedy in 1960, he became deputy attorney general, then associate justice.

On the court he was known as a conservative, but moderate is more like it, looking at his record overall. These things are relative. It is possible to construct a continuum from "right" to "left" of Supreme Court justices by calculating how often each votes with the most conservative and most liberal justice each term. For the last two terms, Justice White has been the fourth justice from the left on the continuum. There are nine justices, so that is about as centrist as one can get. Nor is this a new development. In his first term, 1962-1963, when the court was more relatively liberal, Justice White was the fourth justice from the right.

Justice White's impact has been more conservative than this suggests. In the last two terms, for example, he voted much more often with conservatives than with liberals on 5-4 decisions. He is certainly a conservative on the most highly visible and contentious issue the court has dealt with in recent years: abortion. He dissented in the 1973 landmark Roe vs. Wade decision that said women have a constitutional right to abortion in most situations and circumstances. He has consistently voted against abortion rights since.

If President Clinton sticks to his campaign pledge to apply a pro-Roe litmus test when nominating a justice, Justice White's retirement will probably have a profound effect. The current court is divided roughly 2-3-4 -- two solid supporters of Roe, three who support it with modifications and four who oppose it. If that becomes 3-3-3, the pro-choice movement will have much more breathing room as individual cases lead to fine-tuning laws dealing with a woman's right to an abortion.

It has been 26 years since a Democratic president's nominee joined the Supreme Court. After a generation without having a president of their own to nominate justices, every element of the Democratic Party is hungry to see someone chosen with a particular agenda or credentials. There are many litmus tests. There may even be a intra-party fight over the highest of spoils the U.S. political system offers. We would not expect a Democratic "Borking" of one of their own, but Mr. Clinton still may need all his political skills to fill the vacancy without angering friends and making enemies.

As for Justice White, he is a vigorous and public-spirited man who will surely write other chapters in a rich life. He has already said he will sit as a judge on other courts. Those he will surely grace as much as he has the Supreme Court for 31 years.

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