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.[2]

Potter Stewart
Associate Justice of the Supreme Court of the United States
In office
October 14, 1958  July 3, 1981
Appointed byDwight D. Eisenhower
Preceded byHarold Hitz Burton
Succeeded bySandra Day O'Connor
Judge of the United States Court of Appeals for the Sixth Circuit
In office
April 27, 1954  October 13, 1958
Appointed byDwight D. Eisenhower
Preceded byXenophon Hicks
Succeeded byLester LeFevre Cecil
Personal details
Potter Stewart

(1915-01-23)January 23, 1915
Jackson, Michigan, U.S.
DiedDecember 7, 1985(1985-12-07) (aged 70)
Hanover, New Hampshire, U.S.
Resting placeArlington National Cemetery
Political partyRepublican
Spouse(s)Mary Ann Bertles[1]
EducationYale University (B.A.)
Yale Law School (LL.B.)

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 war, 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, In re Gault and Griswold v. Connecticut. His concurring opinion in Jacobellis v. Ohio popularized the phrase "I know it when I see it."


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 of the Ohio Supreme Court.[3]

Stewart earned an academic scholarship to attend the prestigious Hotchkiss School, where he graduated in 1933. He then went on to Yale University, where he was a member of Delta Kappa Epsilon (Phi chapter) and Skull and Bones[4] graduating Phi Beta Kappa in 1937 with a Bachelor of Arts degree cum laude. He served as chairman of the Yale Daily News. After studying international law at the University of Cambridge in England for a year, Stewart enrolled at Yale Law School where he graduated cum laude in 1941 with a Bachelor of Laws. While at Yale Law School, 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 Zephalso an initiate of Delta Kappa Epsilon and Skull and Bones, and eventually a professor of classics at Harvardwas 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.

Sixth Circuit service

Stewart was nominated by President Dwight D. Eisenhower on April 6, 1954, to a seat on the United States Court of Appeals for the Sixth Circuit vacated by Judge Xenophon Hicks. He was confirmed by the United States Senate on April 23, 1954, and received his commission on April 27, 1954. His service terminated on October 13, 1958, due to his elevation to the Supreme Court.[5]

Supreme Court service

Stewart received a recess appointment from President Dwight D. Eisenhower on October 14, 1958, to a seat on the Supreme Court of the United States vacated by Associate Justice Harold Hitz Burton. He was nominated to the same position by President Eisenhower on January 17, 1959. He was confirmed by the Senate by a vote of 70–17 on May 5, 1959, and received his commission on May 7, 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).[6] He served as Circuit Justice for the Sixth Circuit from October 14, 1958 to July 3, 1981, and as Circuit Justice for the Fifth Circuit from October 12, 1971 to January 6, 1972. He assumed retired status on July 3, 1981, serving in that status until his death on December 7, 1985.[5]

Stewart came to a Supreme Court controlled by two warring ideological camps and sat firmly in its center.[7][8][9] 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,[10] 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.[11] 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.[12]

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".[13] Stewart opposed the Vietnam War[14] and on a number of occasions urged the Supreme Court to grant certiorari on cases challenging the constitutionality of the war.[15]

Stewart consistently voted against claims of criminal defendants in the area of federal habeas corpus and collateral review.[16] He was concerned about broad interpretations of the due process and equal protection clauses.[17]

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."[18] 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."[18]

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."[19]

Fourth Amendment

Before 1967, Fourth Amendment protections were mostly limited to notions of property: possessory geographical locations such as apartments, or physical objects.[20]

Stewart's opinion in Katz v. United States established that the Fourth Amendment "protects people, not places."[20] 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.[20] Katz therefore extended the reach of the fourth amendment beyond just physical intrusions; it would also protect against the seizure of incorporeal words.[20] 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.[20] The Katz case made government wiretapping by both state and federal authorities subject to the Fourth Amendment's warrant requirements.[20]

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.[21]

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 nautical miles (190 km) from the international border.[22]

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".[17]

Access to the courts

Justice Stewart was a leader in trying to maintain access to federal courts in civil rights cases.[23] Stewart was one of the strongest dissenters in the trend of denying litigants access to the federal courts.[23]

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.[23]

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.[24] 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.[25]

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.[25]

In a dissenting opinion in Ginzburg v. United States, 383 U.S. 463 (1966), Stewart said "Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime."[26]

Retirement and death

Stewart announced his retirement from the Court on June 18, 1981,[27] 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.[19]

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.

On January 20 and 21, 1985, Stewart administered the oath of office for Vice President George H. W. Bush. He died later that year after suffering a stroke near his vacation home in Sugar Hill, New Hampshire,[28] and was buried in Arlington National Cemetery.[29]

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.[30] Additional papers also exist in other collections.[31]

In 1989, Bob Woodward disclosed that Stewart had been the primary source for The Brethren.[32]

See also


  1. https://www.mlive.com/news/grand-rapids/index.ssf/2013/03/mary_ann_bertles_stewart_widow.html
  2. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. page 291–292.
  3. Clare Cushman (December 11, 2012). The Supreme Court Justices: Illustrated Biographies, 1789–2012. SAGE Publications. p. 418. ISBN 978-1-4522-3534-9.
  4. "Six Yale Societies Elect 90 Members: Book and Snake and Berzilius Again Fill Their Ranks as University Groups. Quotas Chosen in an Hour: Tapping Is Done in the Traditional and Picturesque Harkness Court Ceremony". The New York Times. May 8, 1936. p. 18. Retrieved January 2, 2015.
  5. "Stewart, Potter - Federal Judicial Center". www.fjc.gov.
  6. "Nomination of Potter Stewart as Assoc. Justice of Supreme Court". govtrack.us. May 5, 1959. Retrieved January 2, 2015.
  7. Eisler, Kim Isaac (1993). A Justice for All: William J. Brennan, Jr., and the decisions that transformed America. page 159. New York: Simon & Schuster. ISBN 0-671-76787-9
  8. "Irvin v. Dowd 366 US 717 (1961)". U.S. Supreme Court. June 5, 1961. Retrieved July 18, 2018.
  9. John P. MacKenzie (December 8, 1985). "Potter Stewart is Dead at 70; Was on High Court 23 Years," NY Times("The Court that Justice Stewart joined was closely divided on many of its most important questions, which often gave the junior member the deciding vote in his first few years.")
  10. Stern, Seth (2010) Justice Brennan, Liberal Champion, page 357, Houghton-Mifflin Harcourt. ISBN 0-547-14925-5
  11. Eisler, 182
  12. Woodward, Bob; Scott Armstrong (September 1979). The Brethren. Simon & Schuster. ISBN 0-671-24110-9.
  13. Eisler, 232
  14. Strassfeld, Robert M. "The Vietnam War On Trial: The Court-Martial of Dr. Howard Levy," 1994 Wisc. L. Rev. 839, 840 ("On June 19, 1974, the United States Supreme Court upheld the court-martial conviction of Dr. Howard B. Levy, and with it, the constitutional validity of Uniform Code of Military Justice ("UCMJ") Articles 1332 and 134.3 The Court's announcement of its decision in Parker v. Levy prompted an unusual display of ire; Justice Potter Stewart angrily read his dissenting opinion from the bench." [citations omitted])
  15. Lamb, Charles M., Stephen C. Halpern, eds. (1991). The Burger Court: Political and Judicial Profiles. Champaign-Urbana, IL: University of Illinois Press. Chapter 6 by Phillip J. Cooper, "Justice William O. Douglas: Conscience of the Court," p. 169 ("The cases presenting challenges to the validity of the war in Vietnam came in many forms, often in litigation concerning the draft, but most of them also contained a foundation assertion that the legitimacy of the war itself was in question. Recalling this period, Douglas asserted: 'I wrote numerous opinions stating why we should take these cases and decide them. Once or twice, Potter Stewart or Bill Brennan joined me. But there was never a fourth vote.'") ISBN 0252061357, ISBN 9780252061356.
  16. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 296.
  17. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 304.
  18. "Potter Stewart". Oyez. Chicago-Kent College of Law.
  19. Al Kamen (December 8, 1985). "Retired High Court Justice Potter Stewart Dies at 70". The Washington Post. Retrieved January 2, 2015.
  20. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 292.
  21. Chimel v. California, 395 U.S. 752 (1969)
  22. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 294.
  23. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 297.
  24. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Pages 298–299.
  25. Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 299.
  26. Alternative Reel Logo – Quietly Redefining the Internet Top 10 Quotes Against Censorship.
  27. "Archived copy". Archived from the original on January 11, 2012. Retrieved October 26, 2011.CS1 maint: archived copy as title (link)
  28. AP. "Stewart, an Ex-Justice, Hospitalized by Stroke".
  29. "Indian Hill Historical Society, Potter Stewart". January 1, 2001. Archived from the original on October 11, 2007. Retrieved January 2, 2015.
  30. Rosen, Jeffrey (September 23, 2007). "The Dissenter, Justice John Paul Stevens". The New York Times. Retrieved May 22, 2010.
  31. Biography, bibliography, location of papers on Potter Stewart Archived February 18, 2012, at the Wayback Machine at Sixth Circuit U.S. Court of Appeals.
  32. Lukas, J. Anthony (February 1989). "Playboy Interview: Bob Woodward". Playboy (36). p. 62.

Further reading

  • Abraham, Henry J., Justices and Presidents: A Political History of Appointments to the Supreme Court. 3d. ed. (New York: Oxford University Press, 1992). ISBN 0-19-506557-3.
  • Barnett, Helaine M., Janice Goldman, and Jeffrey B. Morris. A Lawyer's Lawyer, a Judge's Judge: Potter Stewart and the Fourth Amendment. 51 University of Cincinnati Law Review 509 (1982).
  • Barnett, Helaine M., and Kenneth Levine. Mr. Justice Potter Stewart. 40 New York University Law Review 526 (1965).
  • Berman, Daniel M. Mr. Justice Stewart: A Preliminary Appraisal. 28 University of Cincinnati Law Review 401 (1959).
  • Cushman, Clare, The Supreme Court Justices: Illustrated Biographies,1789–1995 (2nd ed.) (Supreme Court Historical Society), (Congressional Quarterly Books, 2001) ISBN 1-56802-126-7; ISBN 978-1-56802-126-3.
  • Frank, John P., The Justices of the United States Supreme Court: Their Lives and Major Opinions (Leon Friedman and Fred L. Israel, editors) (Chelsea House Publishers, 1995) ISBN 0-7910-1377-4, ISBN 978-0-7910-1377-9.
  • Frank, John Paul. The Warren Court. New York: Macmillan, 1964, 133–148.
  • Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992., ISBN 0-19-505835-6; ISBN 978-0-19-505835-2.
  • Martin, Fenton S. and Goehlert, Robert U., The U.S. Supreme Court: A Bibliography, (Congressional Quarterly Books, 1990). ISBN 0-87187-554-3.
  • Urofsky, Melvin I., The Supreme Court Justices: A Biographical Dictionary (New York: Garland Publishing 1994). 590 pp. ISBN 0-8153-1176-1; ISBN 978-0-8153-1176-8.
  • Woodward, Robert and Armstrong, Scott. The Brethren: Inside the Supreme Court (1979). ISBN 978-0-380-52183-8; ISBN 0-380-52183-0. ISBN 978-0-671-24110-0; ISBN 0-671-24110-9; ISBN 0-7432-7402-4; ISBN 978-0-7432-7402-9.
  • Yarbrough, Tinsley E. Justice Potter Stewart: Decisional Patterns in Search of Doctrinal Moorings. In The Burger Court: Political and Judicial Profiles, eds., Charles M. Lamb and Stephen C. Halpern, 375–406. Urbana: University of Illinois Press, 1991.
Legal offices
Preceded by
Xenophon Hicks
Judge of the United States Court of Appeals for the Sixth Circuit
Succeeded by
Lester LeFevre Cecil
Preceded by
Harold Hitz Burton
Associate Justice of the Supreme Court of the United States
Succeeded by
Sandra Day O'Connor
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