Potter Stewart

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Potter Stewart – Life, Jurisprudence, and a Legacy of Moderation

Explore the life of Potter Stewart (1915–1985), Associate Justice of the U.S. Supreme Court: his early years, legal philosophy, landmark opinions, “I know it when I see it,” and enduring influence on American constitutional law.

Introduction

Potter Stewart was a U.S. Supreme Court Justice from 1958 to 1981, widely regarded as a centrist and pragmatic jurist. He earned a reputation for balancing respect for precedent with a cautious openness to evolving interpretations of individual rights. Although often in the “swing” position, Stewart was not doctrinaire—he valued moderation, restraint, and institutional integrity. His memorable quip in Jacobellis v. Ohio—“I know it when I see it”—has become one of the most quoted lines in legal history.

Early Life and Education

• Born: January 23, 1915, in Jackson, Michigan (while on vacation), though his family was based in Ohio.

• He was the son of James Garfield Stewart, who would become mayor of Cincinnati and later a justice on the Ohio Supreme Court.

• Stewart attended the elite Hotchkiss School, graduating in 1933, before going to Yale University, where he graduated cum laude in 1937.

• After a year of postgraduate study at the University of Cambridge, he returned to Yale for law school and earned his LL.B. (cum laude) in 1941.

• While at Yale Law School, he was an editor of the Yale Law Journal and was active in student life.

Early Career & Public Service

• After law school, Stewart briefly practiced in New York, and then joined the U.S. Naval Reserve during World War II (1941–1945), serving aboard oil tankers. He achieved the rank of lieutenant (junior grade).

• After the war, he settled in Cincinnati, Ohio, where he joined a law firm and became active in local civic affairs.

• Stewart was elected to the Cincinnati City Council in the early 1950s and served as vice mayor from 1952 to 1953.

• In 1954, President Dwight D. Eisenhower appointed him to the U.S. Court of Appeals for the Sixth Circuit. He served there until his Supreme Court appointment.

Supreme Court Tenure (1958–1981)

Appointment & Confirmation

• Stewart received a recess appointment to the Supreme Court on October 14, 1958, to succeed Justice Harold Hitz Burton.

• He was formally nominated by Eisenhower in January 1959 and confirmed by the Senate on May 5, 1959, by a vote of 70 to 17.

• The 17 opposing votes came largely from Southern Democrats concerned about civil rights rulings.

Judicial Role & Philosophy

• On the Warren Court, Stewart was often in dissent or moderation—differing from the majority in decisions on school prayer (Engel v. Vitale), Miranda rights, and reapportionment.

• During the Burger Court era, he often served as a swing or pivotal vote.

• Stewart generally favored narrow rulings, sought to respect precedent (stare decisis), and emphasized that courts should avoid overreaching into policy or politics.

Landmark Opinions & Contributions

Fourth Amendment / Privacy Cases

• Katz v. United States (1967): Stewart authored the majority opinion that established the idea that the Fourth Amendment “protects people, not places”—introducing the concept of a “reasonable expectation of privacy.”

• Chimel v. California (1969): He limited the scope of warrantless searches incident to arrest to the immediate area around the arrestee, rather than the whole house.

Civil Rights & Access to Courts

• Jones v. Alfred H. Mayer Co. (1968): Stewart joined in expanding the reach of the Civil Rights Act (1866) to private discrimination in housing.

• Sierra Club v. Morton and United States v. SCRAP: Stewart’s opinions in standing doctrine cases helped shape how plaintiffs may bring environmental or public-interest litigation.

Obscenity & Free Speech

• Jacobellis v. Ohio (1964): In a short concurrence, Stewart famously wrote that “I know it when I see it” to describe his threshold for identifying “hard-core pornography”—a phrase that entered legal lore.

• Over time, Stewart moderated earlier positions on privacy and joined the Roe v. Wade majority in 1973, embracing the right to abortion under a constitutional privacy doctrine.

Death Penalty

• Furman v. Georgia (1972): Stewart joined the Court’s decision that invalidated many existing death penalty statutes under Eighth Amendment concerns about arbitrariness.

• Gregg v. Georgia (1976): He joined in upholding revised capital punishment laws that imposed more guidance to juries.

Retirement, Death & Legacy

• Stewart announced his retirement on June 18, 1981, and officially left the Court on July 3, 1981.

• He was succeeded by Sandra Day O’Connor, the first woman to serve as a U.S. Supreme Court Justice.

• After retirement, Stewart served in a senior status capacity until his death. He participated in public education projects, including a constitutional debate series The Constitution: That Delicate Balance.

• Potter Stewart died of a stroke on December 7, 1985, in Hanover, New Hampshire, at age 70. He was interred at Arlington National Cemetery.

Legacy

• Stewart is remembered for judicial moderation, judicial humility, and his refusal to impose sweeping personal doctrinal views.

• The “I know it when I see it” line remains one of the most often cited phrases in American constitutional law, encapsulating both the power and limits of judicial judgment.

• His work in privacy, Fourth Amendment law, and access to courts continues to influence debates in criminal procedure, surveillance, digital privacy, and public interest litigation.

Notable Quotes

Here are a few representative remarks attributed to Justice Stewart:

“I know it when I see it.” (on defining obscenity in Jacobellis v. Ohio) He later expressed some regret: “In a way, I regret having said what I said about obscenity — that’s going to be on my tombstone.” His judicial style is often summarized in descriptions such as: “temperamentally inclined to moderate, pragmatic positions” and “guided by a sense of decency and proportion.”

Lessons from Potter Stewart

1. Moderation can be influential
   Stewart’s swing vote status shows that centrist, principled positions can shape the balance of the Court.

2. Judges should exercise institutional modesty
   Rather than acting as policy-makers, Stewart often chose narrow rulings and resisted overstepping judicial boundaries.

3. Clarity in reasoning matters
   His opinions often begin with a careful descriptive recitation of facts before legal analysis—underscoring the importance of grounded argument.

4. Precedent and doctrine must be weighed, not overturned lightly
   Stewart’s respect for stare decisis speaks to preserving legal stability even while adapting to new contexts.

5. Famous lines can overshadow depth—but substance endures
   While “I know it when I see it” is widely quoted, Stewart’s broader jurisprudence continues to matter in areas like privacy, criminal procedure, and civil rights.