Potter Stewart (1915-1985)
Stewart was born on January 23, 1915 in Cincinnati, Ohio. Stewart was
the son of James Garfield and Harriett (Potter) Stewart. Stewart's
father was a lawyer who served as mayor of Cincinnati and later was a
justice of the Supreme Court of Ohio. Stewart graduated from Yale
University in 1937, and in the midst of the Great Depression, spent the
next year at Cambridge University on a fellowship. He then returned to
the United States to attend law school at Yale. He graduated Yale Law
School in 1941, shortly before the the United States entered World War
II. Stewart spent the fall of 1941 working for a law firm on Wall
Street, but after the Japanese bombed Pearl Harbor, Stewart joined the
navy as an officer. He spent the war on battleships in the Atlantic
Ocean and the Mediterranean Sea, earning several commendations for his
After the War ended, Stewart returned to Cincinnati to practice law. Stewart served part-time on the Cincinnati city council while practicing law. In 1954, President Eisenhower nominated Stewart to the United States Court of Appeals for the Sixth Circuit. After the retirement of Justice Harold Burton, an Ohioan, in 1958, Eisenhower nominated the 43-year old Stewart to the Court.
Stewart remained on the Court until his retirement in July 1981. Stewart joined what is known historically as the Warren Court, and remained on the Court through most of the so-called Burger Court era. As a moderate (and sometimes jurisprudential conservative) on a generally liberal Court during his first decade (1958-69), Stewart often found himself in the minority, although his record in civil rights cases is quite good. In his last fifteen years on the Court, he was often a swing vote on a regularly divided Burger Court. Stewart's opinions were well written, to the point, and incremental.
Stewart dissented in Griswold v. Connecticut (1965), concluding the law barring the purchase of contraceptives "an uncommonly silly law," but constitutional nonetheless because of his doubts about the existence of an implied right of privacy. In Roe v. Wade (1973), Stewart concurred, on the grounds that the right of privacy existed, but suggested that the Court remedy its substantive due process jurisprudence, which failed to note the relation between economic and noneconomic rights as protections from encroachment by the state. Stewart's most important statement concerning the idea of rights is from Lynch v. Household Finance (1972), decided shortly before Roe v. Wade. Stewart wrote, "The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is, in truth, a ‘personal’ right, whether the ‘property’ in question be a welfare check, a home or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized." Stewart bravely attempted to rejoin what the Court had separated as economic and noneconomic rights, a link that the rest of the Court has refused to make.
Somewhat unfortunately, Stewart may best known for his statement in Jacobellis v. Ohio (1964), an obscenity case, that "I know it when I see it," in determining whether the film was obscene. This statement was ridiculed by many, but spoke a truth about the difficulty of articulating why one film was obscene, and thus unprotected by the first amendment, and why another was merely pornographic, which meant it was protected by the first amendment. Stewart did not let the difficulty of articulation cause him to forego drawing any line between the pornographic and obscene.
Stewart married Mary Ann Bertles in 1943. They had three children. He died on December 7, 1985.