STEWART, POTTER J. (1915–1985)

When dwight d. eisenhower nominated Potter Stewart to the United States Supreme Court, the President was recognizing the perfect embodiment of Midwest Republican civic virtues. Born in Cincinnati, Stewart was the son of a popular reformist and Republican mayor who was later appointed to the Ohio Supreme Court. Stewart went from Cincinnati to Yale College where he was a class leader, then to Harvard for graduate study, and then back to Yale Law School. He returned to Cincinnati, after service in the Navy and on Wall Street to practice law and engage in civic affairs. In 1954, at the age of thirty-nine, he was named to the Court of Appeals for the Sixth Circuit. In October 1958, as a recess appointment, Stewart became an Associate Justice of the Supreme Court.

Stewart's tenure on the Court—more than twenty-three years—was atypically long. Only eighteen Justices have served a longer term. Yet Stewart did not seek to place a sharp imprint on the work of the Court, an imprint of the sort Justice hugo l. black or Justice felix frank-furter had brought to their work. Nor did he seek to build a constituency within the Court or outside it. During two periods, at the outset of his tenure and shortly after the transition to the burger court, Stewart's vote was of great significance in determining the outcome of the Court's work. Because he was not a member of a dominant and consistent majority, it would not be the case, under the customs of the Court, that the most significant cases of the quarter-century were his to write.

Stewart was guided in his decisions and his actions as a judge by a sense of decency and proportion. He believed in a nation in which order, partially derived from privately inculcated values, offered the opportunity for advancement, creativity, and freedom. His sense of propriety led him to decline the possibility of becoming Chief Justice, according to then-President richard m. nixon, because Stewart thought it inappropriate for a sitting Justice to aspire to a presidential elevation. Even his resignation was characteristic. Stewart resigned not out of illness, nor out of ambition, nor for alternative appointment, but merely because he felt that limited service was correct.

These themes of propriety, of respect for structure and rules, permeate the jurisprudence of Justice Stewart. He was a firm adherent to the principles of stare decisis, even when its application led to a result varying from his own previously expressed view. In a 1974 dissenting opinion he wrote: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve."

An elegant and careful treatment of the facts was often at the core of a Stewart opinion because an understanding of the facts was central to the way he approached the issues in a case. Regularly, he would indulge his belief that a decision should be of appropriately narrow scope by stating what the case was not about. For him, a deep understanding of context was a prophylactic against undue haste in constitutional decision making. Dissenting in estes v. texas (1965), for example, Stewart sought to demonstrate that the use of television cameras in the courtroom in that criminal case did not provide the factual predicate for the sweeping pronouncements in the Court's opinion concerning rights of defendants. Context yielded doctrine, and not the reverse. If the result of an understanding of the facts was increased doctrinal complexity, then that could not be helped. "The time is long past when men believed that development of the law must always proceed by the smooth incorporation of new situations into a single coherent analytical framework," he wrote in coolidge v. new hampshire (1971). He thought it wrong that doctrine, sometime encapsulated in a "sterile metaphor" should seem to substitute for careful analysis, a point he made in his dissenting opinion in abington school district v. schempp (1963).

Much of Stewart's most significant work dealt with defining those rules, especially the first amendment and the fourth amendment, which constrain the activities of government. There was a sharp tinge of the radical in Stewart's protection of the individual from government intervention. He celebrated the Fourth Amendment's warrant clause as a carefully conceived limitation on precipitate government searches and persistently opposed a reading that cheapened the clause. According to his colleague Justice lewis f. powell, Stewart's opinion in katz v. united states (1967) "revitalized the fourth amendment" by rejecting the notion first espoused in olmstead v. united states (1928) that the amendment applied only to physical trespass by police officers. In Katz, the court held that private conversations even outside the home must be secure from unwarranted police interception. "The Fourth Amendment," Stewart declared in characteristically pithy style, "protects people not places." Thus a Federal Bureau of Investigation microphone placed against the wall of a telephone booth was held to be an invasion of the right of privacy. Similarly, Stewart led the Court in a series of opinions that valued the doctrinal purity of a judicially sanctioned warrant requirement for a valid police search. Stewart sought to place the doctrine and its numerous exceptions in proper balance. At the same time, Stewart strongly recognized that in the field of economic regulation legislatures should not be subject to similar constraints. He especially admired Justice robert h. jackson and was fond of quoting Jackson's aphorism that "[t]he view of judicial supremacy … has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts."

Stewart's opinions gave important strength to the First Amendment guarantee of freedom of speech and freedom of the press. He set as a task for himself a clearer and longer-lasting basis for the protection of the press so that it could monitor the government and inform the populace. In new york times co. v. united states (1971) he wrote that only material that would cause "direct, immediate, and irreparable harm to the nation or its people" could be subject to prior restraint through court-ordered publication restrictions. In an early opinion for the Court, Shelton v. Tucker (1960), Stewart proclaimed that government cannot pursue even a legitimate end "by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."

Stewart could be bold as well as forceful. It was his influence that led the Court to revitalize the thirteenth amendment, validating Congress's power to establish a sweeping ban on racial discrimination in private housing. In jones v. alfred h. mayer co. (1967) a land developer refused to sell a house to Joseph Lee Jones because Jones was black. By invoking the Thirteenth Amendment, Stewart's far-reaching opinion bypassed the limited and often confusing state action requirement of the fourteenth amendment and held that discrimination in private housing violated a previously dormant Reconstruction-era civil rights statute, the civil rights act of 1866. In general, his civil rights opinions had a refreshing simplicity and directness that avoided temporizing and recognized statutory and constitutional imperatives.

Stewart was influential in other areas as well. For a time, his was one of the most original and radical views on the freakishness of the imposition of capital punishment. It was his reconception of the criminal law in Robinson v. California (1962) that established new categories of thinking about sanctions and stigma. In Carrington v. Rash (1965) he broke new ground in his constitutional measure of state-imposed vote eligibility restrictions based on occupation, residency, and similar grounds.

Earlier than many of his colleagues Stewart brought to his analyses of the antitrust laws a keen sense of the economic impact of various approaches to the clayton act and the sherman act : his perceptions about the inappropriateness of a "per se" approach in vertical integration cases, stated in dissent in United States v. Arnold, Schwinn & Co. (1967), became the view of the Court in Continental T.V., Inc. v. GTE Sylvania, Inc. (1977); his scorn for mechanical reliance on market shares as a test for invalidating mergers, articulated in dissent in United States v. Von's Grocery Co. (1966), became the text of his majority opinion in United States v. General Dynamics Corp. (1973).

Stewart was a bridge, a point of continuity from the Court of the late 1950s to the Court of the 1980s. Throughout, he prized what he viewed as the qualities of being a judge. In harris v. mcrae (1980) he wrote—upholding the constitutionality of a law restricting federal funding for abortions—that it was not the mission of the Court to decide whether "the balance of competing interests" in that legislation, or any other, "is wise social policy." Citing one of his favorite cases, williamson v. lee optical, inc. (1955), Stewart concluded that "we cannot, in the name of the Constitution, overturn duly enacted statutes simply "because they may be unwise, inprovident, or out of harmony with a particular school of thought." Stewart's philosophy of law, his jurisprudence of appropriateness, his respect for the role of the Court, transcend categories as his devoted service on the Court transcended categorization.

Monroe E. Price
(1986)

Bibliography

Friedman, Leon 1978 Potter Stewart. In Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court: Their Lives and Major Opinions, 2nd ed. New York: Chelsea House.

Meresman, Barnett, Meresman, Goldman & Morris 1982 A Lawyer's Lawyer, A Judge's Judge: Justice Potter Stewart and the Fourth Amendment. University of Chicago Law Review 51:509–544.

Stewart, Potter 1975 Or of the Press. Hastings Law Journal 26:631–637.