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

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Well, all the cases that come to the Supreme Court are close; if they weren’t they shouldn’t have been before the Court at all. But I can’t think of any decision I made or in which I participated that I now believe was a mistake. I tried always to decide each case the way I thought that it ought to be constitutionally decided. Certainly I could always see the other side, because in most cases there is a lot to be said on both sides. But I’m not aware of any decision that I made or in which I participated that I would make differently today.

When you came to the Court in 1958, didn’t seventeen senators oppose your confirmation?

That’s correct. And an eighteenth apologized the next day for having voted in my favor. He said if he had known I had favored desegregation when I was on the circuit court, he would have voted against me too.

He must have felt better when as a Supreme Court justice you opposed the forced busing of elementary school children. Did you feel that the movement had gone too far or that busing simply was not the right means for achieving the end?

Well, to begin with, I had no choice as a judge of a court of appeals but to follow the Supreme Court’s decision in Brown v. Board of Education. In simple language, that decision was that public schools could not close their doors to any children because of the color of their skin. It was the right decision in any event. But at the time of my confirmation the case of Brown v. Board of Education was new enough so that politically it was very, very sensitive. Now, that case had nothing to do with so-called affirmative action or busing or any duty on the part of public schools to have a student body that was representative of the proportion of black and white people in the community. It had to do only with the duty of public schools not to close their doors to students because of their race.

And that, it seems to me, is what the Constitution is. It’s color-blind.

I take it you were not concerned by the absence of any mention of education in the Constitution?

No, because there is mention of equal protection of the law in the Fourteenth Amendment, and it seemed to me that the opinion in Brown v. Board of Education was correct under that provision—the equal protection clause.

You mentioned affirmative action. In the case of Allan Bakke [who claimed that rejection of his application to enter a California medical school was a case of “reverse discrimination"] you did oppose the so-called quota arrangement. Was that the only basis for your feeling that affirmative action in that case was not in order?

Well, in that case, I joined Justice [John Paul] Stevens’s dissent, but it was in another case that I more fully expressed my view—that governmental action to the detriment of any person on account of race is unconstitutional. The first Justice Harlan, the grandfather of the justice with whom I served, said that the Constitution is color-blind. He said this in his dissent in the case of Plessy v. Ferguson, and that is what the Constitution is. It’s color-blind.

And on that ground you do not think affirmative action should ever be taken if it is prejudicial toward whites?

Not if it does damage. Not if it operates to the detriment of any person on account of that person’s race, whatever the race may be. Now, there are certain hypothetical, imaginable situations where you could benefit members of one race without operating to the detriment of those of another race, but generally, in real cases, in real life, if one person wins, another person loses.

And of course many blacks have said that this was a case where they had to lose if Bakke won.

Well, Bakke did win because of the concurring and controlling opinion of Justice Powell. The one distinction that Justice Powell’s opinion had was that nobody agreed with it. Nobody joined it. But his was the fifth vote favoring Bakke because of the frank setting aside of sixteen persons out of one hundred applicants for the medical school of the University of California in favor of nonwhite applicants. The decision did say that a person’s race could otherwise be taken into account in the interest of diversity of the student body.

Another area of great concern in your term on the Court was the question of criminal-court procedures. Is it your view that today’s alarming crime rate is really related to court and criminal procedures?

Well, one wonders. I think the primary reason for the alarming crime rate is the fact that so few people are apprehended and get into court at all. Only one out of eight or ten is ever caught.

Would you have any idea whether that rate is higher or lower than it had been?

I don’t know. My impression is that it’s a higher rate of nonapprehension—and that doesn’t surprise me, with the ease of transportation and communication. In these days of airplanes it’s much easier for a person to be thousands of miles away in a few hours.