AFTER HIS 1962 confirmation to the Supreme Court, Justice Byron White was asked what he thought was the high court's role. "To decide cases," he answered. His lengthy tenure, which ended with his retirement in 1993, never attracted much of a following among those with grander ideological visions for the court. Justice White, a former football star known as "Whizzer," was appointed near the heyday of the liberalism of the Warren Court, and he disappointed many liberals with his dissents in famed cases such as Roe v. Wade and Miranda v. Arizona. But he never became a major figure in the conservative judicial backlash either. Rather, throughout his tenure, Justice White, who died this week at 84 years of age, eschewed ideology and decided cases. We disagreed with a number of his major opinions, but in an era when competing ideological visions of the courts vie for primacy, and when judicial nominations are political battlegrounds, his austere and simple vision of the court's role looks pretty good.
Judges, Justice White once said, "have an exaggerated view of their role in our polity." His own instinct was to minimize that role by deferring to legislatures -- particularly to Congress -- in a wide range of areas. He would have upheld not only abortion restrictions but also the campaign finance laws that the court struck down and the legislative veto -- the practice under which one house of Congress used to nullify regulations. There were limits to his deference; he was a solid vote for strong action to enforce desegregation orders. There are times, after all, when circumstances cry out for aggressive judicial action. But Justice White's career was a long-running argument for the notion that there are fewer causes worthy of judicial crusading than many people imagine -- that democracy, in other words, is a robust instrument.
A little more such restraint might help cool the current war over the future of the judiciary. Conservatives often speak of judicial restraint; they have practiced it somewhat less. Many liberals, while objecting to conservative judicial policymaking, openly pine for the days when liberal judges had the votes to rule. If the task of judging is to be more than a mere struggle for power, it will have to be because judges of all political stripes agree -- at least most of the time -- that their task is, as Justice White said, to decide cases.
