Msgr. Paul V. Garrity

Byron Raymond “Whizzer” White was appointed to the Supreme Court in 1962 by President John F. Kennedy. When he retired in 1993, he was the only Democrat on what was once called the Warren Court, named for Chief Justice Earl Warren. He earned the nickname “Whizzer” because of his athletic prowess as an All-American halfback for the University of Colorado, a Heisman Trophy runner-up, and as a running back for the Detroit Lions. He was a Rhodes scholar, a Yale Law School graduate, and a law clerk for Chief Justice Fred Vinson. In 1961, he became a deputy attorney general before assuming his position on the highest court in the land. 

Over the course of his 31 years on the court, he authored 994 opinions that do not fit neatly into the liberal versus conservative boxes that have come to characterize Supreme Court decisions. In civil rights cases, liberals saw him as being on the right side of the angels. When he sided with those who wanted to reign in the long arm of the court on social issues, he made the conservatives very happy. Having been appointed to the bench when Robert F. Kennedy was attorney general, he was a great disappointment to progressives when he voted to uphold capital punishment laws and resisted what some critics have called judicial activism. 

White is an interesting personality for us to consider because of today’s low regard for the Supreme Court that polls and pundits report. As a co-equal part of government, the Supreme Court has generally been respected as the final arbiter of complex and contentious issues. Our Founding Fathers created the court in such a way as to insulate it from the vagaries of partisan politics through lifetime appointments. Though presidents historically choose candidates from their own party, a nominee’s political leanings have been, theoretically, less important than their competence, intelligence, and native judicial temperament. White came on the bench as a superior intellect, a Rhodes scholar, and the valedictorian of his Yale Law School class. The fact that he pleased and displeased both sides of the political aisle validates the non-partisan way he approached the law. 

In 2024, the reputation of the Supreme Court has plummeted largely because it is no longer being seen as the non-partisan arbiter of complex issues, the intention of our Founding Fathers. Everyone, who has been paying attention, knows that the court has always been a political animal. Lifetime appointments, however, have mitigated the potential of the court to become an arm of the political party in the White House. Because the political party of the incumbent president will influence a president’s nominations to the Supreme Court, over time the court will reflect this philosophy, Democrat or Republican. In a sense, the preferences of the electorate (the choice of president) will eventually be reflected in Supreme Court decisions. For more than 200 years, this methodical process has insulated the court from raw politics and helped it achieve a level of respectability and even reverence within the wider population. 

When the Federalist Society, a powerful think tank on the political right, began to run potential Supreme Court nominees through multiple litmus tests to test their conservative bona fides for appointment to the high court, the tradition of looking for non-partisan, intellectual giants for the Supreme Court went out the window. It is only a question of time before a Federalist Society on the left emerges as a strainer for potential Supreme Court nominees for non-conservative presidents. Sadly, the American political establishment is now and will continue to be the victim of this political reality that will exacerbate our country-wide divisions.

There are many significant issues that are now before our present Supreme Court. As a nation that is built on laws and not personalities, it will be very important that the 2024 decisions, especially the ones with political implications, be carefully reasoned and pass the smell test of being devoid of partisan influence. The Senate’s refusal to consider President Barack Obama’s nominee for the high court struck a serious blow to the court’s non-partisan aspiration. The next two justices who arrived at the bench, after Obama’s presidency, were tainted by the Senate’s previous refusal to follow protocol. The present result is a court that is celebrated by part of the country and discounted as legitimate by many others. The decisions that will emerge from this present Supreme Court have the power to help us move beyond our present divisions or confirm the fears of many that the court is nothing more than the arm of the political party that holds the White House.

Msgr. Paul V. Garrity is a Senior priest of the Archdiocese of Boston and former pastor of St. Mary’s Parish and School in Lynn.