Editing Byron White (section)

===Substantive due process doctrine===
Frequently a critic of the doctrine of "[[substantive due process]]", which involves the judiciary reading substantive content into the term "liberty" in the Due Process Clause of the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] and [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]], White's first published opinion as a Supreme Court Justice was a joint dissent with Justice Clark in ''[[Robinson v. California]]'' (1962), foreshadowing his career-long distaste for the doctrine. In ''Robinson'', he criticized the remainder of the Court's unprecedented expansion of the Eighth Amendment's prohibition of "cruel and unusual punishment" to strike down a California law providing for civil commitment of drug addicts. He argued that the Court was "imposing its own philosophical predilections" on the state in this exercise of judicial power, although its historic "allergy to substantive due process" would never permit it to strike down a state's economic regulatory law in such a manner.

In the same vein, he dissented in the controversial 1973 case ''[[Roe v. Wade]]''. White voted to strike down a state ban on [[contraceptive]]s in the 1965 case of ''[[Griswold v. Connecticut]]'', although he did not join the majority opinion, which famously asserted a "[[right of privacy]]" on the basis of the "penumbras" of the [[United States Bill of Rights|Bill of Rights]]. White and Justice [[William Rehnquist]] were the only dissenters from the Court's decision in ''Roe'', though White's dissent used stronger language, suggesting that ''Roe'' was "an exercise in raw judicial power" and criticizing the decision for "interposing a constitutional barrier to state efforts to protect human life." White, who usually adhered firmly to the doctrine of ''[[stare decisis]]'', remained a critic of ''Roe'' throughout his term on the bench and frequently voted to uphold laws restricting abortion, including in ''[[Planned Parenthood v. Casey]]'' in 1992.<ref>''Thornburg v. American Coll. of Obst. & Gyn.'' 476 U.S. 747 (1986). White, J., dissenting.</ref>

White explained his general views on the validity of substantive due process at length in his dissent in ''[[Moore v. City of East Cleveland]]'' (1977):

<blockquote>The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major [[Gloss (annotation)#In law|judicial gloss]] on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930s and 1940s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority.</blockquote>

White parted company with Rehnquist in strongly supporting the Supreme Court decisions striking down laws that discriminated on the basis of sex, agreeing with Justice [[William J. Brennan]] in 1973's ''[[Frontiero v. Richardson]]'' that such laws should be subject to strict scrutiny. Only three justices joined Brennan's plurality opinion in ''Frontiero''; later [[gender discrimination]] cases would be subjected to intermediate scrutiny (see ''[[Craig v. Boren]]''). In ''[[Rostker v. Goldberg]]'', White joined Brennan and Marshall in dissent arguing that male-only [[Selective Service]] registration was unconstitutional.<ref>{{cite web |last1=White |first1=Byron |title=Rostker v. Goldberg |url=https://supreme.justia.com/cases/federal/us/453/57/#tab-opinion-1954231 |website=Justia |access-date=9 April 2022 |archive-date=April 9, 2022 |archive-url=https://web.archive.org/web/20220409020032/https://supreme.justia.com/cases/federal/us/453/57/#tab-opinion-1954231 |url-status=live }}</ref>

White wrote the majority opinion in ''[[Bowers v. Hardwick]]'' (1986), which upheld [[Georgia (U.S. state)|Georgia]]'s anti-sodomy law against a substantive due process attack:<ref name="usa today" />

<blockquote>The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.... There should be, therefore, great resistance to ... redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.</blockquote>

White's opinion in ''Bowers'' typified his fact-specific, deferential style, treating the issue in that case as presenting only the question of whether homosexuals had a fundamental right to privacy, even though the statute in ''Bowers'' potentially applied to heterosexual sodomy.<ref>''Bowers'', 478 U.S. 186, 188, n. 1.</ref> Georgia, however, conceded during oral argument that the law would be inapplicable to married couples under the precedent set forth in ''[[Griswold v. Connecticut]]''.<ref>Oral argument of ''Bowers v. Hardwick'', available at Oyez.org, https://www.oyez.org/cases/1980-1989/1985/1985_85_140 {{Webarchive|url=https://web.archive.org/web/20150924083315/http://www.oyez.org/cases/1980-1989/1985/1985_85_140 |date=September 24, 2015 }}</ref> A year after White's death, ''Bowers'' was overruled in ''[[Lawrence v. Texas]]'' (2003).