Whizzer White’s Ghost

From the New York Sun

The best moment in President Trump’s introduction of his choice for the Supreme Court came when the nominee, Judge Neil Gorsuch of Colorado, paid homage to the first justice for whom he’d long ago clerked, Byron “Whizzer” White. He was, Judge Gorsuch noted, the last Coloradan on the Supreme Court and “the only justice to lead the NFL in rushing.” That was a reference to White’s celebrated season with the team that is now called the Steelers. Oxford University had allowed White to delay his Rhodes Scholarship a year. So he led the league in rushing as a 21-year-old rookie. He’d already won the nickname “Whizzer.”

Via Wikipedia GHOST OF A JUSTICE PAST: Gridiron Great Whizzer White, nominated to the high bench via the above note from President Kennedy, was one of the two dissenters in cases in which the Supreme Court vouchsafed a right to abortion. President Trump’s nominee to the court, Judge Neil Gorsuch, is a former clerk to White and would fill out the court at a moment when it is possible to imagine that the right to life is again in the balance.

One of the things that made the moment so wonderful is that Justice White, who’d been elevated to the high bench by President Kennedy, was one of the two dissenters in Roe v. Wade, the case that reckoned the Constitution vouchsafes a right to abortion. Technically, White’s dissent came in a parallel case, decided at the same time, known as Doe v. Bolton. The only other dissenter was, in both cases, Justice Rehnquist, who would go on to be chief justice of America. It strikes us that it took some grit for Judge Gorsuch to pay homage to Justice White at this particular juncture.

It is, after all, largely, though certainly not only, the question of abortion that makes the confirmation of the next justice so fraught. It is not hard to imagine a circumstance when the next two justices — if they are presented the right case — could lead to a shift in the balance of reason on the court away from the illogic of Roe. There will be plenty of chance to dispute the fine constitutional points of Roe, which even such an abortion supporter as Justice Ginsburg reckons was decided on the wrong constitutional basis. What impresses us about Whizzer White’s dissent in Roe is the plain, clear language in which he made his points.

He began by saying of Roe and Doe that at “the heart of the controversy 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 advisor willing to undertake the procedure.”

“The Court, for the most part,” White continued, “sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother. With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment.”

White reckoned that 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 disentitled 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.”

Then the famous words: “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. The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.” Adding that he could see no “constitutional warrant” for “imposing such an order of priorities” on the people and state legislatures, he dissented.

It is not, of course, Whizzer White whom President Trump has just nominated to the high bench. Nor is it by any means clear, at least to us, that Judge Gorsuch, liberated by life tenure on the high bench, would vote to overturn Roe. His record offers some hints but nothing definitive. It’s no small thing, though, that one of White’s clerks has just been put up for the bench at a time when abortion may be in the balance. Like White, Gorsuch is famed for being a straightforward, easily comprehensible legal writer. And our guess is that if Judge Gorsuch makes it to the court, the ghost of Whizzer White will be waiting to greet him.

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