Like many in Kennedy’s orbit he had personal charisma - having led the National Football League in rushing in 1938 as a rookie out of the University of Colorado - and cast an aura of masculine vigor. Kennedy appointee, White was hardly deemed a conservative when he was plucked out of Kennedy’s Justice Department for the high court. Alito peppers his draft opinion with barbs (“egregiously wrong,” “remarkably loose,” “on a collision course with the Constitution from the day it was decided”) with a dismissiveness that echoes White’s Roe dissent (“The Court simply fashions and announces a new constitutional right for pregnant mothers”).Ī John F. What most clearly links Alito and White as writers, at least, is less a conservative approach to the Constitution than a fondness for clipped, direct assertions. But it has that memorable line - “raw judicial power” - which Alito quotes approvingly multiple times and seems to get to the essence of five current justices’ complaints about Roe.

Bolton) is anything like the thunderbolt that Harlan threw down in Plessy. And few would contend that White’s six-paragraph dissent in Roe (which appears in court records in the companion case of Doe v. Unlike Harlan, White was not particularly famed for his dissents. In fact, almost all of Harlan’s dissents in major cases became the law. Justice Harlan will probably share the general fate and will not result in many changes in the law.” Brown wrote, “While judging from the past, the dissents of Mr. Ferguson, the case upon which Harlan so profoundly disagreed. When Harlan died in 1911, his official court tribute was authored by Justice Henry Billings Brown, who wrote the majority opinion in Plessy v. Justice John Marshall Harlan, who served for 34 years starting in 1877, earned the moniker “Great Dissenter” for his powerfully worded dissents in cases that took away Black people’s rights and increased income inequality. This is significant because law schools rarely have given the time of day to dissenting opinions, and few legal casebooks even include them.

The draft opinion includes a cavalcade of references to dissenting opinions from conservative justices including Antonin Scalia, Clarence Thomas, Anthony Kennedy, Neil Gorsuch, Brett Kavanaugh and Alito himself. Future Supreme Court Justice Byron 'Whizzer' White (left) gets a few pointers from Pittsburgh player/coach Johnny 'Blood' McNally in 1938.Įven more significant than the nod to White is Alito’s tribute to dissent itself.

Peter canellos the great dissenter