About Potter Stewart, Associate Justice of the U.S. Supreme Court
Potter Stewart (January 23, 1915 – December 7, 1985) was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.
Stewart was born in Jackson, Michigan, approximately 30 miles (50 km) south of Lansing, Michigan, while his family was on vacation. His father, James Garfield Stewart, a prominent Republican from Cincinnati, Ohio, served as mayor of Cincinnati for seven years and was later a justice on the Ohio Supreme Court.
Potter Stewart attended the Hotchkiss School, graduating in 1933. Then, he went on to Yale University, where he was a member of Delta Kappa Epsilon (Phi chapter) and Skull and Bonesr graduating class of 1937. He was awarded Phi Beta Kappa and served as chairman of the student newspaper, The Yale Daily News. He graduated from Yale Law School in 1941, where he was an editor of the Yale Law Journal and a member of Phi Delta Phi. Other members of that era included Gerald R. Ford, Peter H. Dominick, Walter Lord, William Scranton, R. Sargent Shriver, Cyrus R. Vance, and Byron R. White. The last would later become his colleague on the US Supreme Court.
He served in World War II as a member of the US Navy Reserve aboard oil tankers.
In 1943, he married Mary Ann Bertles in a ceremony at Bruton Episcopal Church in Williamsburg, Virginia. His brother, Zeph Stewart (also an initiate of Delta Kappa Epsilon and Skull and Bones), was the best man. They eventually had a daughter, Harriet (Virkstis), and two sons, Potter, Jr. and David.
He was employed in private practice at the law firm of Dinsmore & Shohl, LLP in Cincinnati. During the early 1950s, he was elected to the Cincinnati City Council. At the age of 39, in 1954, he was appointed to the United States Court of Appeals for the Sixth Circuit.
Supreme Court service
In 1958, President Dwight D. Eisenhower nominated Stewart to the Supreme Court to replace Justice Harold Hitz Burton, who was retiring. Stewart came to a Supreme Court controlled by two warring ideological camps and sat firmly in its center. A case early in his Supreme Court career showing his role as the swing vote during that time is Irvin v. Dowd.
Stewart was temperamentally inclined to moderate, pragmatic positions, but was often in a dissenting posture during his time on the Warren Court. Stewart believed that the majority on the Warren Court had adopted readings of the First Amendment Establishment Clause (Engel v. Vitale (1962), Abington School District v. Schempp (1963)), the Fifth Amendment privilege against self-incrimination (Miranda v. Arizona (1966)), and Fourteenth Amendment guarantee of Equal Protection with regard to voting rights (Reynolds v. Sims (1964)) went beyond the framers' intention. In Engel, Stewart found no precedent to remove school sponsored prayer, and in Abington, Stewart refused to strike down the practice of school sponsored Bible reading in public schools; he was the only justice who took this position in both cases. Stewart dissented in Griswold v. Connecticut (1965) on the ground that, while the Connecticut statute barring the use of contraceptives seemed to him an "uncommonly silly law," he could not find a general "Right of Privacy" in the Fourteenth Amendment Due Process Clause.
Prior to the appointment of Warren Burger as Chief Justice, many speculated that President Richard Nixon would elevate Stewart to the post, some going so far as to call him the front-runner. Stewart, though flattered by the suggestion, did not want again to appear before—and expose his family to—the Senate confirmation process. Nor did he relish the prospect of taking on the administrative responsibilities delegated to the Chief Justice. Accordingly, he met privately with the president to ask that his name be removed from consideration.
On the Burger Court, Stewart was seen as a centrist justice and was often influential, joining the decision in Furman v. Georgia (1972) which invalidated all death penalty laws then in force, and then joining in the Court's decision four years later, Gregg v. Georgia, which upheld the revised capital punishment legislation adopted in a majority of the states. Despite his earlier dissent in Griswold, Stewart changed his views on the "Right of Privacy" and was a key mover behind the Court's decision in Roe v. Wade (1973), which recognized the right to abortion under the "Right of Privacy." Stewart opposed the Vietnam War and on a number of occasions urged the Supreme Court to grant certiorari on cases challenging the constitutionality of the war.
Stewart consistently voted against claims of criminal defendants in the area of federal habeas corpus and collateral review. He was concerned about broad interpretations of the due process and equal protection clauses.
He was the lone dissenter in the landmark juvenile law case In re Gault (1967). That case extended to minors the right to be informed of rights and the right to an attorney, which had been granted to adults in Miranda v. Arizona (1966) and Gideon v. Wainwright (1963), respectively.
To the general public, Stewart may be best known for a quotation, or a fragment thereof, from his opinion in the obscenity case of Jacobellis v. Ohio (1964). Stewart wrote in his short concurrence that "hard-core pornography" was hard to define, but that "I know it when I see it." Usually dropped from the quote is the remainder of that sentence, "and the motion picture involved in this case is not that." Justice Stewart went on to defend the movie in question against further censorship. One noted commentator opined that: "This observation summarizes Stewart's judicial philosophy: particularistic, intuitive, and pragmatic." Justice Stewart later recanted this view in Miller v. California, in which he accepted that his prior view was simply untenable.
Before 1967, fourth amendment protections were mostly limited to notions of property: possessory geographical locations such as apartments, or physical objects. Stewart's opinion in Katz v. United States established that the fourth amendment "protects people, not places." Stewart wrote that the government's installation of a recording device in a public phone booth violated the reasonable expectation of privacy – the government was committing "seizure" of callers' words. The Katz opinion therefore extended the reach of the fourth amendment beyond just physical intrusions; it would also protect against the seizure of incorporeal words. In addition, the reach of the amendment now went as far as a person's reasonable privacy expectation – the reach of the amendment was no longer defined solely by property limits. The Katz case made government wiretapping by both state and federal authorities subject to the fourth amendment's warrant requirements.
In Chimel v. California, decided in 1969, Stewart wrote an opinion stating that arresting a suspect in his house does not give the police the right to perform a warrantless search of the entire house, but only the area surrounding the arrestee.
In the case of Almeida-Sanchez v. United States, Stewart wrote that roving patrols of the United States Border Patrol must have some justifiable reason before stopping a car; the USBP could not stop and search automobiles without probable cause merely because a stop was made within 100 nautical miles (190 km) from the international border.
In 1977's Whalen v. Roe, Stewart objected, in dissent, to any broad establishment of a right to privacy; he said prior Court decisions did not "recognize a general interest in freedom from disclosure of private information."
Access to the Courts
Justice Stewart was a leader in trying to maintain access to federal courts in civil rights cases. Stewart was one of the strongest dissenters in the trend of denying litigants access to the federal courts.
Stewart wrote the Court's opinions in 1972's Sierra Club v. Morton and 1973's United States v. SCRAP, broadly laying out the requirements of standing in federal actions.
In 1968's Jones v. Alfred H. Mayer Co., Stewart extended the 1866 Civil Rights Act to outlaw private refusals to buy, sell, or lease real or personal property for racially discriminatory reasons. In 1976, Stewart extended the Act again in Runyon v. McCrary—private schools open to all white students could no longer exclude black children, and all other offers to contract made to the general public were also made subject to the 1866 Act.
In 1965's Shuttlesworth v. City of Birmingham, Stewart held for the court that police could not use an anti-loitering law to keep civil rights workers from standing or demonstrating on a sidewalk.
Ranked as one of the ten best statements on censorship, among his most quote worthy statements was in a dissenting opinion in Ginzburg v. United States, 383 U.S. 463 (1966): "Censorship reflects society's lack of confidence in itself. It is a hallmark of an authoritarian regime.”
Retirement and death
Stewart retired from the Court in July 1981 at the age of 66. He was succeeded by Sandra Day O'Connor, the first woman to serve on the Supreme Court.
After his retirement, he appeared in a series of public television specials about the United States Constitution with Fred W. Friendly.
He died in 1985 after suffering a stroke near his vacation home in New Hampshire, and was buried in Arlington National Cemetery.
Most of Stewart's personal and official papers are archived at the manuscript library of Yale University in New Haven, Connecticut, where they are now available for research. The files concerning Stewart's service were closed to researchers until all the justices with whom Stewart served have left the court; the last of these was Justice John Paul Stevens who considered him his judicial hero. Additional papers also exist in other collections.
In 1985, upon Stewart's death, Bob Woodward disclosed that Stewart had been the primary source for The Brethren.