On Greatness and Constitutional Vision: Justice Byron R. White Rex E. Lee One of the reporters who interviewed me when Justice Byron R. White announced his retirement asked whether I thought he was one of history’s “good” Supreme Court Justices or one of the “greats.” I answered great. The reporter responded that that was what he would expect me to say, but pointed out that most people reserve the adjective “great” for those Justices who come to the Court with certain identifiable doctrines favored by them, who then develop and adhere consistently to these doc trines throughout their careers, and who then live to see them (or at least some of them) become settled law partly (and in some cases largely) through their efforts. This pattern, the reporter said, has not described Justice White. In one sense, the reporter had a point. It has been difficult to identify Byron White with any Rex E. Lee clerked for Justice Byron R. White the first term White was on the Court. This photo was taken in White’s chambers in the Supreme Court Building. 6 JOURNAL 1993 particular policy or viewpoint. As Professor Leon Friedman noted some fifteen years ago, “[b]ecause he has not aligned himself at either end ofthe spectrum ofthe Court, it is difficult to define his work or his judicial philosophy.”1 A more recent (and decidedly less sympathetic) observer has asserted that Justice White appears “uninterested in articulating a constitutional vi sion.”2 But, unlike the reporter (and the last quoted commentator), I believe that Justice White’s approach to constitutional adjudication neither disqualifies him for the adjective “great” nor establishes a lack of“constitutional vision.”3 On the contrary, Byron White’s constant and committed dedication to case-by-case adjudica tion, in the grand com mon law tradition of Americanconstitutional law, both secures his claimto “greatness” and evidenceshis over-arch ing “constitutional vi sion.” Itis an articleoffaith among many that an ab soluteprerequisitetoju dicial greatness is a firm commitment to “[a] persuasivejudicial philoso phy.”4 And, not only must one have a persuasive philosophy (meaning, I suppose, apersonal com mitmentto pre-conceivednotions of“liberty,” or “fairness” or “justice”), truly great jurists—so this line of reasoning goes—must be able to “project their philosophy from case to case.”5 I believe this measure ofjudicial greatness is seri ously flawed. The conscious development of policy over time through the exercise of one’s office is a function that we normally, and quite properly, associate with the members of the political branches. They are properly elected, responsive to the will of the people through periodic reelection, and theirjob is to make policy. The role ofthejudge, by contrast, should be to decide cases. To be sure, judges make both law and policy, but they do it in the context of deciding individual cases. Thejudicial authority granted in Article III is limited, by its own terms, to deciding cases and controversies.6 It follows, I believe, that the only legitimate way that policy should result from judicial minds and pens is Thejudge’sforgingofpolicy should be incidental to the decision ofactual cases. through the exercise of that case-by-case, decisional authority. Policy development, in short, should not be the primaryjudicial objective. On the contrary, thejudge’s forging ofpolicy shouldbe incidental to the decision of actual cases, progressing as necessity and experience mandate. In my view, that is the legitimate standard for assessing the “greatness” ofanyfederaljudge. And, evaluatedby that standard, Justice White belongs with the best. Byron White has been acutely aware of the respective competencies of the legislative and judicial branches.7 Indeed, at his confirmation hearing, Justice White testified that the “legisla tive power is not vested in the Supreme Court,” and he asserted that the “major instrument for changingthe laws inthis country is the Congress of the United States.”8 This fundamental com mitment to a limitedju dicial role, I believe, is the foundation for the Justice’s“preferencefor case-by-case adjudica tion,” as well as for his ‘“aversion to large statements, to assertions of overriding philosophy.’”9 Nevertheless, by the time of his retirement, after more than three decades of deciding cases, we know...