Potter Stewart

U.S. Supreme Court Justice Potter Stewart (1915-1985) was a strong supporter of civil rights and of First and Fourteenth amendment rights to freedom of expression. During the Burger Court period of his service he functioned as "swing man" with Justice Byron R. White.

Born in Michigan in 1915, Potter Stewart was later a resident and Republican political activist in Ohio. After graduating from Yale and Cambridge, Stewart became President Eisenhower's fourth appointee to the Supreme Court in October 1958. "Ike" promoted him from the U.S. Court of Appeals for the Fifth Circuit, whence he had sent him four years earlier. Initially serving under a recess appointment, the 39-year-old jurist ran into a bitter and protracted confirmation battle in the Senate, chiefly in view of his liberal record on racial matters. Spearheading the opposition was the powerful leader of the strong Southern bloc, Richard B. Russell, a Democratic Senator from Georgia whose loyalists delayed confirmation for almost seven months. When the appointment came to a vote, it was 70 to 17.

Justice Stewart lived up fully to the expectations of President Eisenhower and the Southern senators. He charted a generally progressive-conservative or moderately liberal course, depending upon one's perception. During the hey-day of the Warren Court he was more often than not found on the cautiously conservative or "centrist" side, especially in matters concerning law and order and reap-portionment and redistricting. But his stance on racial and sexual discrimination and in particular on the First and Fourteenth amendments' guarantee of freedom of expression found him only slightly less pro-individual or progroup than his most advanced libertarian contemporaries, such as Justices Douglas, Brennan, and Marshall. Thus, although yielding to no one in his devotion to the tenets of federalism, Stewart brooked no equivocation with egalitarian constitutional guarantees and commands. And some of his well-known opinions in the constitutional "disaster area" of obscenity testify to his generous approach to freedom of speech and press as well as privacy. Hence his exasperated concurring observation in Jacobellisv. Ohio (1964) (involving the movie Les Amants) that, under the First and Fourteenth amendments, criminal laws in this area are faute de mieux ("for want of better") limited to hard-core pornography—which, he went on to say, he could characterize only with "I know it when I see it."

Stewart had hardly assumed his seat on the bench in 1958 when he gave notice of his opposition to censorship of any kind by writing the Court's unanimous opinion that struck down the New York Board of Regent's proscription of the film version of D. H. Lawrence's Lady Chatterley's Lover, warning that the advocacy of ideas was not subject to censorship; that by doing so the state had "struck at the very heart of constitutionally protected liberty." At the same time, however, Stewart was not about to be a party to a policy that, in his view, transformed the Bill of Rights "into a suicide pact"—as Justice Jackson had warned so eloquently in 1949 in Terminiello—a commitment to law enforcement that might well mean giving the benefit of the doubt to government rather than the individual. Consequently, it was natural for Stewart to line up with likeminded Justices Clark, Harlan, and White in the realm of criminal procedure in dissenting from such celebrated and contentious 5:4 rulings as those in Escobedo v. Illinois and Miranda v. Arizona.

Stewart, high in President Nixon's esteem, was being seriously considered for promotion to Chief Justice upon Earl Warren's retirement in 1969—and he might very well have been nominated. But in a long talk with the president in the Oval Office, he asked Nixon to remove him from the list of possibilities, believing strongly that the interests of the tribunal warranted an appointment from outside its membership, and that promotion from within was delicate and difficult and had not worked well for the Court in the on-the-record instances of Associate Justices Edward D. White and Harlan F. Stone.

After Chief Justice Earl Warren's and Justice Abe Fortas' departures from the bench, followed two years later by the departures of Justices Black and Harlan, Stewart and Byron R. White became the "swing men" on what had by then become the Burger Court. It was a role admirably suited for the cautious, judicious, fair-minded student of judicial power, whom Court historians have adjudged to merit a high "average" ranking. It was a role he comfortably continued until he issued the surprise announcement of his retirement at the end of the 1980-1981 term of Court, having served 23 years. At 66, he was one of the younger Justices on the bench and in excellent health; but, as he told the press conference in which he informed the country that he had decided to step down: "I'm a firm believer that it's better to go too soon than stay too long." He died of a stroke four years later, on December 7, 1985.

Although Stewart would not have won a prize for being the hardest worker on the Court, he always relished his tasks thereon and he never missed a single day of oral argument. The jurist, whom the senior correspondents of the press corps pronounced "our best friend on the Court since Hugo Black," penned some 300 opinions for the Court and another 350 in concurrence or dissent. He may not be identified with many of the Court's landmark decisions—with the possible exceptions of his majority opinions in Katz v. United States (an important 1967 case broadening the protection against wiretapping) and Gregg v. Georgia (upholding capital punishment under carefully-controlled circumstances in 1976), his concurring opinions in the 1972 Furmanv. Georgiacapital punishment case and in the 1971 Pentagon Paperscase, and his stirring dissenting opinion in the 1980 Fullilove v. Klutznick case that sanctioned a ten percent "set aside" racial quota for construction work on federally funded projects. Yet he will be remembered as a principled constitutionalist who had that all-too-rare ability to write both simply and clearly.

Further Reading

The literature on Justice Stewart is thin. A good analysis is Jerold H. Israel's "Potter Stewart" in Leon Friedman and Fred L. Israel (editors), The Justices of the United States Supreme Court, 1789-1978 (1980). For a thorough sketch of Stewart's early career see John P. Frank, The Warren Court (1964) and H. M. Barnett and K. Levine, "Mr. Justice Stewart," New York University Law Review 40 (1965). Generally, see Henry J. Abraham, Justices & Presidents: A Political History of Appointments to the Supreme Court, 2d ed. (1985). □

STEWART, POTTER

As an associate justice from 1958 to 1981, Potter Stewart charted a middle course during a vigorous era on the U.S. Supreme Court. Before his appointment to the Court by President dwight d. eisenhower, Stewart practiced law, served in local government in his native Cincinnati, Ohio, and sat on the Sixth Circuit Court of Appeals from 1954 to 1958. He joined the Supreme Court during a period when the Court was changing the social and political landscape by extending civil rights and liberties under Chief Justice earl warren, yet Stewart remained a moderate during his twenty-three-year tenure. Pragmatism, unpredictability, and plainspoken opinions were his hallmarks. His penchant for witty phrases made him highly quotable, but his inconsistent voting record left only an ambiguous mark on U.S. law. At age forty-three, he was among the youngest appointees to the Court and, at age sixty-six, also one of the youngest justices to retire from it.

Born in Jackson, Michigan, on January 23, 1915, Stewart came from old money and a family steeped in law and politics. Educated at University School, Hotchkiss, as well as at Yale,

"Swift justice demands more than just swiftness."
—Potterm Stewart

Cambridge, and Yale Law School, he earned his law degree from Yale in 1941. A stint on Wall Street followed. He served in the U.S. Navy during world war ii and returned to Ohio after the war. After working for a large law firm in his home state, Stewart briefly followed his father's footsteps into politics. James Garfield. Stewart had been mayor of Cincinnati and a justice of the Ohio Supreme Court. Potter Stewart served on the city council and as vice mayor, but he soon abandoned political life to build his own legal practice.

In 1954 President Eisenhower appointed Stewart to the federal bench. Stewart's high profile in the Ohio bar made him an attractive candidate for the Sixth Circuit Court of Appeals, where he served for the next four years. He was widely respected for his competence and efficiency as an appellate judge, and Eisenhower returned to him in 1958 when a seat opened on the Supreme Court. Although southern senators who disliked his embrace of school desegregation offered scattered opposition to his appointment, the nomination easily succeeded.

On the Supreme Court, Stewart was a moderate justice. He was criticized for indecision, chiefly because he was often the unpredictable swing vote in cases that pitted the Warren Court's activist and judicial restraint blocs against each other. Stewart, however, followed his instincts on the Court without obvious resort to ideology or doctrine. To the question of whether he was liberal or conservative, he replied, "I am a lawyer," explaining that the labels had little value for him in the political sphere and even less in law. Stewart's approach in his opinions is notable for its plain-edged pragmatism. He blasted a state's anti-contraception laws as "uncommonly silly" in griswold v. connecticut (381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d [1965]), and in another case, he wrote of obscenity, stating, "I know it when I see it" (Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 [1964]).

In the arena of civil rights and liberties, Stewart's moderate outlook clearly revealed itself. He sided with claimants in 52 percent of these cases. Among his most notable decisions in favor of civil liberties was Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968), in which the warren court upheld measures that protected African Americans against discrimination in housing. Stewart's pragmatism did not allow for subjectivity, however. Although he regarded Connecticut's ban on the use of contraceptives as silly, he found the law constitutional and dissented from the majority in Griswold v. Connecticut. He maintained his moderate outlook in his later years on the Court. He agreed with the majority's expansion of a right to privacy in the landmark abortion case, roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), but he also attacked the Court's tendency to invalidate any state law it found unwise.

Stewart's legacy on the Court defies easy categorization. At best he is remembered for his pragmatism and at worst for leaving a less than cohesive body of opinions. He retired from the Court in 1981 and died in Hanover, New Hampshire, on December 7, 1985.

further readings

Amar, Vikram David. 1999. "From Watergate to Ken Starr: Potter Stewart's 'Or of the Press' a Quarter Century Later." Hastings Law Journal 50 (April).

Jacobsen, Joel. 2002. "Remembered Justice: The Backround, Early Career and Judicial Appointments of Justice Potter Stewart." Akron Law Review 35 (winter).

Schwartz, Bernard. 1990. The Ascent of Pragmatism: The Burger Court in Action. Reading, Mass.: Addison-Wesley.

Stewart, Potter (b. Cincinnati, Ohio, 23 Jan. 1915; d. Hanover, N.H., 7 Dec. 1985; interred Arlington National Cemetery), associate justice, 1958–1981. Stewart was born into an old, affluent family in Cincinnati, the son of James Garfield Stewart. His father served as mayor of Cincinnati and as a justice of the Ohio Supreme Court. Potter Stewart attended University School, Hotchkiss, and then Yale University, after which he spent a year at Cambridge on a fellowship. Then in 1938 he entered Yale Law School, a hotbed of legal realism and criticism of formalistic approaches to law and public policy. Stewart received a law degree from Yale in 1941 and joined a firm on Wall Street, but following the attack on Pearl Harbor he joined the navy as an officer. He received three battle stars for his service aboard oil tankers in the Atlantic and Mediterranean. He married Mary Ann Bertles on 24 April 1943.

After the end of the war, Stewart returned to Wall Street, but he soon left to join a large firm in Cincinnati as a litigator. Law led to politics; Stewart was elected to the city council twice and as vice‐mayor once. For Stewart, though, politics was an avocation. He devoted most of his effort to building a practice. When a seat on the sixth Circuit Court of Appeals opened in 1954, President Eisenhower appointed Stewart based on his eminence as a member of the bar.

On the Sixth Circuit, Stewart compiled a record as a clearheaded and technically competent appellate judge, one of the leaders of the federal bench. President Eisenhower had made a habit of appointing lower court judges to the Supreme Court, and, when Justice Harold H. Burton retired in 1958, the administration turned to the Sixth Circuit. On 14 October 1958, President Eisenhower announced Stewart's nomination as an associate justice. Oddly, several southern senators opposed him as a “northern integrationist” because one of his few constitutional opinions had involved school desegregation. He was, however, easily confirmed.

Justice Stewart's record on the Court defies easy characterization as either liberal or conservative. He joined a divided Court, and on many significant issues he became the swing vote. Recently, a commentator referred to him as a conservative on a liberal court and a liberal on a conservative court. Stewart charted a moderate course. In the hundreds of cases on civil liberties decided during his tenure, Stewart voted to support the claimant 52 percent of the time, somewhat more than Justices Blackmun and Frankfurter and slightly less than Justices Stevens and Black.

A number of Stewart's phrases have become part of the lode of quotable quotes in American law. Admitting his inability to formulate a coherent test for obscenity in Jacobellis v. Ohio (1964), Stewart claimed “I know it when I see it” (p. 197). He explained his vote to invalidate the death penalty in Furman v. Georgia (1972) as a response to its quirky implementation: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual” (p. 309) (see Capital Punishment).

Stewart wrote several notable opinions. Jones v. Mayer Co. (1968), a civil rights case, is surely one of the most important, since his opinion for the Court revived long‐dormant legislative protections for African‐Americans against discrimination in housing. When the Court in Ginzburg v. United States (1966) upheld a publisher's conviction on obscenity, Stewart dissented: “The First Amendment protects us all with an even hand. It applies to Ralph Ginzburg with no less completeness and force than to G.P. Putnam's Sons” (p. 501). In Roe v. Wade (1973), he concurred in an expansion of the right of privacy but called upon the Court to admit its revival of the much‐reviled “substantive due process” (p. 167). He had voiced concern over the constitutionalization of a right to privacy in the first place, despite his distate for invasions of personal affairs; yet in Griswold v. Connecticut (1965) he referred to one state's law against contraception as “uncommonly silly” but nevertheless constitutional (p. 527).

Unlike many of the justices, such as Black and Douglas, Stewart left no readily identifiable mark on the Court's doctrines or policies. Instead, he bequeathed a distinctive approach to and style of resolving legal issues. He is, as a result, best remembered as a lawyer.

Bibliography

Jerald H. Israel , Potter Stewart, in The Justices of the United States Supreme Court, 1789–1969, edited by Leon Friedman and Fred Israel, vol. 4 (1969), pp. 2919–2947.
John P. Mackenzie , Potter Stewart Is Dead at 70, New York Times, 8 Dec. 1985.

Gregory A. Caldeira

Potter Stewart 1915–85, associate justice of the U.S. Supreme Court (1958–81), b. Jackson, Mich. After receiving (1941) his law degree from Yale, he was admitted to the Ohio bar. He later practiced law in Cincinnati. A U.S. Circuit Court judge from 1954 to 1958, he was appointed by President Eisenhower to replace Harold H. Burton on the Supreme Court. An advocate of the careful exercise of judicial review, Stewart limited his decisions to narrow questions of law and rarely ruled on broad constitutional issues.