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S, Stewart, Potter

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

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 (p. 979) 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.

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