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.
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). □