Potter Stewart

The Warren Court found him in its middle from the start, and he dissented from it in the cases that made its name. In Engel v. Vitale (1962) he was alone against the school-prayer decision: 'I cannot see how an "official religion" is established by letting those who want to say a prayer say it.' In Jacobellis v. Ohio (1964), reversing an obscenity conviction for showing a French film, he wrote the paragraph he could not live down. Criminal obscenity laws, he said, reached only hard-core pornography: 'I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.' In Griswold v. Connecticut (1965) he dissented from the right of privacy in a sentence that has outlived the statute: 'I think this is an uncommonly silly law.' The rest of the opinion was the point. 'With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.' Two years later he wrote the privacy opinion that did last. In Katz v. United States (1967) FBI agents had attached a listening device to the outside of a public telephone booth, and the government argued that nothing had been physically entered. 'For the Fourth Amendment protects people, not places,' Stewart wrote for the Court. 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' The booth was a place a man could enter and shut the door; the conversation was his. In Massiah v. United States (1964) he had already held that federal agents could not use a radio transmitter in an accomplice's car to hear an indicted man talk without his lawyer, and in Chimel v. California (1969) he confined the search that goes with an arrest to the arrested man and his immediate reach. He admired the Chief Justice and said so, with a reservation he kept until the end: Earl Warren (§88), 'for whom I have great admiration and great affection, sometimes was guided by what he thought was right or wrong rather than by the law.'

On the Burger Court the center moved and he stayed, which made him look as though he had moved left. In New York Times v. United States (1971), the Pentagon Papers case, his concurrence supplied the sentence the press has quoted since: 'the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry.' A year later, in Branzburg v. Hayes (1972), Byron White (§93) wrote for the Court that reporters had no privilege to keep their sources from a grand jury, and Stewart, joined by William Brennan (§90) and Thurgood Marshall (§96), began his dissent with a sentence that has outlasted the holding: 'The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society.' He made the argument whole in a speech at Yale on November 2, 1974, published as 'Or of the Press,' where he read the clause as an institutional guarantee rather than an individual one: its purpose was 'to create a fourth institution outside the Government as an additional check on the three official branches,' and 'the publishing business is, in short, the only organized private business that is given explicit constitutional protection.' In Sierra Club v. Morton (1972) he wrote the standing rule that still governs environmental litigation, that the law 'requires that the party seeking review be himself among the injured.' And in Roe v. Wade (1973) the man who had found no right of privacy in Griswold joined the majority, and explained himself. Griswold, he wrote, 'can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment'; that being so, 'the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.' Seven years later, in Harris v. McRae (1980), he wrote for the Court that the right did not carry a subsidy: the Hyde Amendment 'places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.'

He wrote both poles of the modern law of capital punishment. In Furman v. Georgia (1972), the five justices who struck down every death sentence in the country each wrote separately, and Stewart's concurrence was the one that stuck: 'These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.' He put race to one side as unproved and concluded that the Eighth and Fourteenth Amendments 'cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.' The states rewrote their statutes, and in Gregg v. Georgia (1976) Stewart, Lewis Powell (§99), and John Paul Stevens (§101) wrote the joint opinion that upheld the guided-discretion model, holding that 'the punishment of death does not invariably violate the Constitution,' while on the same day, in Woodson v. North Carolina, his plurality struck down the statutes that had answered Furman by making death mandatory. The pair of cases is the law today, and it is Stewart's: not whether, but how. In Fullilove v. Klutznick (1980), dissenting with Rehnquist from the Court's approval of a federal minority set-aside, he opened with the first John Marshall Harlan (§44) in Plessy, 'Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,' and wrote that there was one practice in which government could never engage, not even temporarily and not even as an experiment, and named it.

The Supreme Court Database puts him where the memorial did. Across 3,518 coded votes his liberal share was 50.7 percent against a docket baseline of 57.3, a gap of 6.6 points; he ranks fifteenth of thirty-three on the site's modern scale by both measures, and he dissented in 16.2 percent of cases against colleagues who dissented at 18.2 on the same ones. The one area where he sat above the docket was the First Amendment, 66.5 percent to 63.1; in economic cases he was fifteen points below it, in civil rights eleven. His closest colleague across divided cases was Powell, at 72.6 percent agreement over 959 of them; his furthest was William O. Douglas (§79), at 43.3 percent over 1,579. The drift series gives him one of the program's clearer answers to the question of who moved. Between his first five terms and his last five his own liberal share fell 9.5 points, but the bench around him fell 16.0, so that his gap against his colleagues narrowed from 10.4 points to 3.8, a drift of 6.6 points toward the liberal side that the bootstrap calls real and that ranks fourteenth of twenty-seven. He moved, but the Court moved further and went past him, and the man who had dissented from Warren's Court ended his service nearer its liberal wing than he had begun.

He left at sixty-six. On June 18, 1981, he told his colleagues and the President that he was retiring at the end of the term, and Ronald Reagan accepted the retirement effective July 3. At his news conference the next morning Stewart said it was not important to him that his successor be a woman, only that the successor be a good judge, and offered the test he had used on himself, that a good judge's opinions could be read without any idea whether their author was a man or a woman, a Republican or a Democrat, a Christian or a Jew: 'You just know he or she was a good judge.' On July 7 Reagan announced that he would nominate Sandra Day O'Connor (§102) to the seat. The memorial resolution recorded the reason for going as plainly as he had given it: 'at the end of the Term in 1981 he decided to retire at age 66 to permit him to spend more time with his beloved Andy, their children and grandchildren,' Andy being Mary Ann. He went on sitting by designation on the courts of appeals, the Sixth Circuit among them, and in 1983 Reagan put him on the President's Commission on Organized Crime. In an interview American Heritage published that December he gave the nearest thing he ever offered to a creed: 'It is the judge's primary duty to remove from his judicial work his own political or religious or moral or philosophical or social ideas. But that doesn't mean that I don't have them; it does mean that it's my duty as a judge to remove them from my judicial work.' He suffered a stroke in early December 1985 while visiting family in Vermont and died on December 7, 1985, in a hospital at Hanover, New Hampshire, at seventy. The President's statement that afternoon quoted him once more: 'I never thought of putting a label on myself, except trying to be a good lawyer.' He was buried at Arlington.

When the Court sat in his memory on October 20, 1986, Solicitor General Charles Fried gave the Bar's account of the method: 'He was less interested in pursuing a unified philosophical vision than in determining what the law, as he understood it, required in the case at hand. And his most consistent philosophy was his skepticism about the virtues of apparently consistent philosophies.' He had found himself at the Court's center, Fried said, 'not out of political predilection, but because his habit of mind was to start from a position of equipoise, and from there to assess the competing arguments of the parties before him.' Chief Justice Rehnquist (§100) answered for the Court with the things a colleague knows: that he 'was an avid fan of the Cincinnati Reds baseball team,' that he was 'one of the very few fishermen I have ever known who didn't like to get up early in the morning,' that 'he was a superb craftsman of the written opinion' whose 'opinions were short, lucid, and to the point,' and that for twenty-three years the bench had held 'a judge of keen and penetrating intellect and unwavering devotion, not simply to the exposition of his own ideas, but to the work of the Court as a court.' The resolution offered its own amendment to the epitaph he had dreaded, and it is the right place to leave him: 'He may not have been able to define justice, but he knew it when he dispensed it.'