Western Justice

Article excerpt

Here is a land where life is written in water. (1)

Byron White was the second Supreme Court Justice born west of the hundredth meridian, (2) which defines the arid West. (3) He was raised, was educated, and worked in Colorado most of his life before appointment to the Court, and he vacationed in the West and retained other ties to the region throughout his years on the Court. (4) Did his work on the Court reflect his Western roots?

A regional perspective might relate to values that a Justice brings to all decisions. However, such a broad and amorphous influence is difficult to identify in any Justice (at least since the Civil War), and there is nothing about Justice White's record to suggest any regionalism in his general jurisprudence.

A different question is whether Justice White's connection to Colorado affected his work on cases uniquely associated with the West, either because he had direct personal knowledge of a case's subject, or because he took a personal interest in Western cases generally. White grew up in a small town dependent on irrigated agriculture and worked in the sugar beet fields, so he was intimately acquainted with the significance of Western water development. (5) And federal land ownership is a prominent part of any Westerner's environment. Indeed, resistance to federal control of public lands and reservations is a constitutional viewpoint associated with some Westerners, popularized as the Sagebrush Rebellion. (6) As shown below, however, Justice White was no Sagebrush Rebel. By contrast, Chief Justice Rehnquist is a staunch supporter of states' rights in disputes over Western federal land, though his convictions trace to his Wisconsin boyhood, and he lived in the West but twenty years or so as a young adult. (7)

Moreover, with one peculiar exception discussed below, (8) there is no indication that Justice White claimed special insights in Western cases. His proportion of the Court's opinions in Western cases was not unusually high. This continued to be true in his last years on the Court when, as senior Justice in length of service, he could assign opinions to himself when the Chief Justice was in dissent. Nor did he author an unusually large number of concurrences or dissents in Western cases. These facts could be interpreted either as lack of any special concern for Western cases, or as a disciplined ethic of fair play that resisted allowing natural biases to influence his work. We cannot be sure, but it is unlikely that he had no special feeling for Western issues; some must have touched his heart.

As many have noted, Justice White abjured legal theory. (9) Hence his work, like the common law, must be evaluated on its results and particulars. Because he served during thirty-one years of vast growth in judicial power and activity, there is ample raw material. Scholars have examined his jurisprudence through the prism of famous cases, from liberal views on race to conservative votes on criminal procedure. (10) Some critics broadly accuse him of inconsistency. (11) Other scholars stress the pragmatism that caused him to pay careful attention to the facts of each case, to the consequences of the Court's decisions, and to achieving workable legal rules--qualities that subordinated consistency in abstract doctrine to his sense of justice in particular cases. (12)

Other critiques identify consistent views regarding particular aspects of his work. He has been described as more cautious than his colleagues in exercising judicial power and more deferential to political outcomes. (13) But that account requires so many exceptions that it is at best a loose generalization. (14) More insightful analysts have argued that a consistent basis for many of Justice White's votes was deference to Congress--the view that Congress, not the Court or the states, is the nation's premier maker of policy. (15) Cases on uniquely Western issues were no part of the basis for that thesis, but they reinforce it. …