Potter Stewart

Potter Stewart (January 23, 1915 – December 7, 1985) was an Associate Justice of the United States Supreme Court, serving from 1958 to 1981. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.

After graduating from Yale Law School in 1941, Stewart served in World War II as a member of the United States Navy Reserve. After the work, he practiced law and served on the Cincinnati city council. In 1954, President Dwight D. Eisenhower appointed Stewart to the United States Court of Appeals for the Sixth Circuit. In 1958, Eisenhower nominated Stewart to succeed retiring Associate Justice Harold Hitz Burton, and Stewart won Senate confirmation the following year. He was frequently in the minority during the Warren Court but emerged as a centrist swing vote on the Burger Court. Stewart retired in 1981 and was succeeded by Sandra Day O'Connor.

Stewart wrote the majority opinion in notable cases such as Jones v. Alfred H. Mayer Co., Katz v. United States, Chimel v. California, and Sierra Club v. Morton. He wrote dissenting opinions in cases such as Engel v. Vitale and Griswold v. Connecticut. His concurring opinion in Jacobellis v. Ohio popularized the phrase "I know it when I see it."

Education
Stewart was born in Jackson, Michigan, while his family was on vacation. He was the son of Harriett L. (Potter) and James Garfield Stewart. His father, a prominent Republican from Cincinnati, Ohio, served as mayor of Cincinnati for nine 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 Bones graduating class of 1937. He was awarded Phi Beta Kappa and served as chairman of 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 United States Supreme Court.

Early career
Stewart served in World War II as a member of the U.S. Naval Reserve aboard oil tankers.

In 1943, he married Mary Ann Bertles in a ceremony at Bruton Episcopal Church in Williamsburg, Virginia (at which his brother Zeph—also an initiate of Delta Kappa Epsilon and Skull and Bones, and eventually a professor of classics at Harvard—was the best man). They eventually had a daughter, Harriet (Virkstis), and two sons, Potter, Jr. and David.

He was in private practice with Dinsmore & Shohl 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. He was a recess appointment in 1958 before being confirmed 70–17 by the United States Senate on May 5, 1959. All 17 nay votes came from Southern Democrats (both senators from Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina and Virginia, plus Spessard Holland of Florida).

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 the Fourteenth Amendment guarantee of Equal Protection with regard to voting rights (Reynolds v. Sims (1964)) that 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.

Before 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) that 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.

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, and the motion picture involved in this case is not that." Justice Stewart went on to defend the movie in question (Louis Malle's The Lovers) against further censorship. One commentator opined that: "This observation summarizes Stewart's judicial philosophy: particularistic, intuitive, and pragmatic."

Justice Stewart commented about his second thoughts about that quotation in 1981. "In a way I regret having said what I said about obscenity—that's going to be on my tombstone. When I remember all of the other solid words I've written," he said, "I regret a little bit that if I'll be remembered at all I'll be remembered for that particular phrase."

Fourth Amendment
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. Katz 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, only the area surrounding the arrestee.

In 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; it could not stop and search automobiles without probable cause merely because a stop was made within 100 nmi from the international border.

In 1977's Whalen v. Roe, Stewart objected, dissenting, 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.

Civil rights
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.

In a dissenting opinion in Ginzburg v. United States,, Stewart said "Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime."

Retirement and death
Stewart announced his retirement from the Court on June 18, 1981, and stepped down in early July at the age of 66. He was succeeded by Sandra Day O'Connor, the first woman to serve on the Supreme Court.

At the time of his retirement, Justice Stewart said he wanted to spend more time with his grandchildren and that he wanted to retire from the Court while he was still in good health.

After his retirement, he appeared in The Constitution: That Delicate Balance, a 13-episode learning course series broadcast in 1984 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 had 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.