The Byron White/Ruth Bader Ginsburg connection

By Dave Andrusko

Every so often–seemingly like every week or two–there is speculation about pro-abortion Supreme Court Justice Ruth Bader Ginsburg. She has faced innumerable health challenges over the years. Although she has said many, many times she has no plans to retire, pro-abortionists worry constantly that at some point, pro-life President Donald Trump would have the opportunity to replace her.

Ironically, it was 27 years ago yesterday that Supreme Court Justice Byron R. White, one of the two dissenters in Roe v. Wade,  announced plans to retire. Justice Ginsburg was his replacement. The following ran just after Justice White passed away in 2002.

When former Supreme Court Justice Byron R. White died April 15 at age 84, he had been retired from the High Court for nine years. Because he was pigeonholed as a “conservative,” White never received his proper due. In truth, White not only possessed a razor-sharp intellect, he was a complicated–and courageous–man.

Supreme Court Justice Byron White

Asked for their remembrances of this firm critic of Roe v. Wade, his former colleagues and law clerks were quick to praise White. “He came as close as anyone I have known to meriting Matthew Arnold’s description of Sophocles,” Chief Justice William H. Rehnquist said of his friend. “He ‘saw life steadily and saw it whole.'”

Appointed to the Court by President John F. Kennedy in 1962, White is most familiar to pro-lifers for an oft-quoted remark from his eloquent dissent in Roe‘s companion case, Doe v. Bolton, which he applied to Roe as well:

“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.”

An All-American football player and Rhodes Scholar, White was the personification of the “ideal of intellectual vim married to physical vigor,” as Mark Feeney of the Boston Globe wrote. A prodigious worker, White wrote over 500 opinions in his 31 years on the bench.

A sharp and very shrewd questioner from the bench, he was always exceptionally well prepared. In a tribute to his friend and classmate, Senior U.S. District Judge Louis Oberdorfer recalled White’s “sheer intellectual power, exquisitely good judgment, and perfectionist’s attention to detail.”

One news account recalled how, prior to his appointment to the Court, as a deputy to Attorney General Robert Kennedy, White personally faced down a governor who was in league with the Ku Klux Klan, a man who refused to guarantee that Black Freedom Riders would be protected.

But the plaudits from former clerks also explain why White would have immense problems with far-reaching judicial edicts, such as Roe, the kind that roil the waters because they are not anchored in the Constitution.

Yale University law professor Kate Stith, who was a law clerk to White in 1978-79, said, that for White, “The question was whether the court should bypass political institutions to establish a new social order. His answer was no.”

Stith added, “He was personally very modest. He played an important role in many areas of the law but he was not looking for personal fame.”

USA Today columnist Walter Shapiro is no friend of pro-lifers. Yet the headline affixed to his April 16 column is intriguing: “‘ Roe vs. Wade’ dissent was prescient.” The thrust of his piece is that without ever signaling his personal view on abortion, Justice White “was contending that, without a clear constitutional mandate, the issue [of abortion] was too important and too divisive to be removed from politics by judicial fiat.”

Which was, of course, precisely what Roe did. It short-circuited what was a vigorous ongoing national debate on abortion. The 7-2 decision not only gave abortion proponents a victory for an argument that lacked mooring in the Constitution, but it also handed them a victory they had not “earned” in the give and take of the legislative process.

Supreme Court Justice Ruth Bader Ginsburg

Describing White’s views as “subtle wisdom,” Shapiro inquired, ” Whatever your personal view of abortion, ask yourself, ‘Was White wrong?'”

The only intellectually honest answer is “No!” An open secret in scholarly circles is that this is an opinion shared by people with no particularly strong feelings on abortion but who find the judicial fast shuffle abhorrent.

Reopening that debate, giving people a chance to reconsider abortion as we make changes that are (for now) along the margins, is what pro-lifers have striven to do for nearly 30 years. And it is working.

Not only have we continued to enact traditional, commonsense legislation, such as parental involvement laws, pro-lifers are making headway in a number of newer arenas. All of which helps explain why pro-abortionists in the late 1960s and early 1970s were so eager to skip over the messy business of persuading state legislators. They knew they would face increasingly tough sledding.

Justice White’s resistance was absolutely correct. Roe was imposed from on high by seven results-driven justices aching to give pro-abortionists what they couldn’t secure on their own.

Even honest pro-abortionists understand that.