Let me begin where Justice White began.
First, Justice White believed in the law. He believed both in its power and in its legitimacy. His constitutional judgments were rooted in a fundamental premise--that the application of law in a democracy is not something to be feared; rather, the exercise by government of legitimate authority is essential, and welcome, in a free and democratic land.
Second, Justice White did not equate the "law" with courts or the decisions of courts. Justice White did not embrace the notion, commonly expressed across the political spectrum, that the Third Branch is actually the first among the coordinate branches of our federal government. (1) For him, the preeminent lawmakers in our constitutional government--through which law derives its legitimacy from the consent of the governed--are our legislatures, with federal law clearly supreme over state authority. In his view, whenever the United States Supreme Court constructs new limitations on agencies of government, it bears the heavy burden of justifying its refusal to defer to Congress, state legislatures, juries, and the other institutions of republican democracy.
Third, Justice White had confidence in democratic institutions, and, at the threshold, he had confidence in public officials. He began with a presumption that those who hold positions of public trust generally act in good faith. To be sure, the presumption was rebuttable, and it surely could be overcome or destroyed by the factual record before him. But he never expected or demanded perfection from government, for he well understood that neither human beings nor any institution they create can be flawless.
These principles on which Justice White built his jurisprudence--respect for the law, respect for Congress as the principal engine of legitimate self-government, and respect for government and its officials--were, in Professor Dennis Hutchinson's apt metaphor, "chords" from the New Deal era that "resonate insistently throughout White's judicial career." (2) These principles were not fashionable in the legal academy during much of his time on the Court. Knowing Justice White, my hunch is that he was more reassured than troubled by any criticism from law professors.
Justice White had an ambivalent relationship with the legal academy. On the one hand, he clearly appreciated the values of reasoning, criticism, and scholarship; on the other hand, he believed in facts and in history, and he had no patience for intellectual vogues or for theory unmoored from facts and from context. In all events, he had not the slightest interest in winning a popularity contest on law school campuses--or, for that matter, in editorial boardrooms or anywhere else. It was not in his character to mold his own considered analysis of an issue, or his own principled understanding of his role, in order to win praise or approval from any quarter. To try to please commentators or critics was simply not something he could imagine doing. Byron White was an exemplar of independence and intellectual integrity.
The resulting jurisprudence did not easily fit into the broad and shifting categories of "liberal" or "conservative"--either during his three decades on the Court or now, a decade later. Scholars and commentators who hew to the usual baselines, to the conventional wisdom of political classification, will be confused, applauding some parts of his work while rejecting other parts--and never appreciating the substance and the coherence of the whole.
Consider two fundamental concerns that permeate his decisions--first, the role of Congress and the reach of federal legislative power, and, second, the role of the Supreme Court in explicating the Constitution.
In some ways, these two lines of decisions are counterpoints; for Justice White, they were two sides of the same coin. Rereading these two sets of opinions reminds us of certain salient …