The Law And Potter Stewart: An Interview With Justice Potter Stewart

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POTTER STEWART CAME TO the Supreme Court in 1958, appointed by President Eisenhower at the age of forty-three. The product of a prominent Ohio family long given to public service, he himself had served on the Cincinnati City Council and as a judge of the United States Circuit Court of Appeals. As the second youngest Supreme Court appointee in this century, Justice Stewart was able to sit for twenty-three years and retire, in 1981, at just sixty-six, an age when many a justice has only begun to hit his stride and some are still learning the ropes.

In his quarter-century on the country’s highest bench, Justice Stewart managed to keep his private philosophy very much to himself, subordinating his views on what might be good or bad for American society to his conscientious reading of the Constitution. He was fond of rejecting such labels as “liberal” and “conservative,” favoring instead such formulas as “I’d like to be thought of as a lawyer—a good lawyer, looking at every case under the Constitution and the law.”

This interview with Justice Stewart was an opportunity to explore the underlying views and beliefs of a man freed from those restraints that properly inhibit one who must hand down judgments based on the law rather than on his own social preferences.

Ideologically somewhat of a mystery, Stewart had often dissented from rulings intended to enlarge the rights of the accused, yet he invariably ruled for the defense when the Constitution seemed clearly to point him in that direction. He saw nothing wrong with prayers in the classroom—as long as there was nothing coercive about them. He would not support a federal ban on abortions but, on the other hand, he could find no constitutionally implied right of anyone to have an abortion at the expense of the federal government. If he was especially strong for the First and Fourth Amendments—and he was—it was because the prohibitions they laid down were clear and, to such a Constitutionalist as he, all but beyond misinterpretation.

So bound were his opinions to what he conceived to be the intentions of the Founding Fathers that his fellow justice William O. Douglas was reported to have regarded him as “off in a cloud,” as an elitist, whose family background and cum laude career at Yale had left him remote from the concerns of those whose problems he.had to deal with on the Court.

A warm, friendly, and unassuming man, Potter Stewart himself could hardly have taken that stricture seriously. Relaxed in the office still provided for him in the Supreme Court, he recently expounded informally on the one philosophy he had allowed himself even in his days as a justice: “The genius of the framers was that they used words that can be made applicable to a changing and growing society.”

It’s been two and a half years since you left the bench, Mr. Justice. Have you had any regrets or second thoughts about your decision to leave the Court at such an early age?

No, I haven’t had any, really. My decision was voluntary and it was reached knowingly and deliberately. Of course I miss the Court but not in any unhappy way.

You were sixty-six at the time—that’s quite young for a justice to retire, isn’t it?

Actually, I was eligible to retire at sixty-two, but that was in the middle of an election year and I didn’t want to retire then.

Can you say just why you wanted to leave?

Well, I think it was a good idea to retire before people started saying, “Why doesn’t that old guy get off?”

But there were “guys” much older.

Yes, there were and there still are, but I did serve for twenty-three years, and that was long enough.

It was reported when Chief Justice Warren retired that you were being considered—were perhaps the front runner—to succeed him and that you made it known to President Nixon that you did not want the appointment. Why would you turn down the highest post in your profession?

I did make it known to the President that I didn’t want to be considered for chief justice although I had no idea whether or not I might otherwise have been named. Being a justice on this Court is a tremendous job for a lawyer; in fact, it’s the best job within the power of the American people to give to an American lawyer. But the additional duties of the chief justice are not a lawyer’s duties at all. I didn’t want that kind of administrative job any more than I would want to be dean if I were on the faculty of a law school, or managing partner in a law firm.

You were often described as a swing justice in your days on the Court, a man who might come down on either side of an issue. Have subsequent events made you wish that you had perhaps come down on the other side in some particular case?