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

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You feel that would really outweigh the defects in court procedure?

I think that’s the main cause.

As the law stands, of course, evidence that is illegally obtained may not be used against a suspect.

That’s right. The rule goes back to the year 1914, when it was unanimously decided by a Court that was never accused of being militantly liberal.

Well, subsequent to that ruling, Judge Cardozo said that this was absurd because it let the criminal go free because the constable erred. Was Cardozo wrong?

My own position is that the Fourth Amendment is part of our Constitution, and unless it’s to be a dead letter, it has to be enforced. It was the considered and unanimous view of the Supreme Court in the case of Weeks v. United States in 1914 that the only way to enforce the Fourth Amendment, which protects us all against unreasonable searches and seizures—whether of our person or houses or effects, including our papers—was to make evidence obtained in violation of the Constitution inadmissible. If the amendment is to be worth anything more than words and the paper they’re written on, it has to have a sanction behind it.

Let’s take the case of a policeman who stops a car for speeding and discovers drugs in the trunk.

Under the Fourth Amendment he had no right to look for it. If you assume that under the Fourth Amendment he had no power to do it, then what he did was in violation of the Constitution. The provision, unless it’s amended, has to mean something.

Mr. Justice, I gathered from your opinions that you opposed capital punishment when it is, in the Court’s phrase, imposed in an arbitrary or capricious way. Are you against it in all circumstances?

Yes, as a legislator I would vote against capital punishment. But as a judge I couldn’t find that it was unconstitutional as such.

You know of no circumstances where, speaking just as a citizen, you think it would be warranted?

As a judge, I couldn’t find that capital punishment as such was unconstitutional.

Well, I can think of cases of perfectly incorrigible people who are not subject to any kind of rehabilitation. They would be better off and society would be better off if they were simply eliminated. But generally speaking that’s not the way capital punishment works, and I am against it as a citizen and would vote against it as a legislator. But that has nothing to do with its constitutionality.

Since drug use appears to be a very important cause of crime, how would you feel about making certain drugs easily available to addicts, legalizing them, and in that way perhaps protecting the rest of society?

That proposal has gained in currency and popularity, and to me it has a certain amount of appeal. Drug use and all that goes with it, the commercial activity in drugs, is a very, very serious social problem. So long as it’s a criminal offense, it’s going to be in the hands of criminals, leading to all sorts of brutality and crime. So maybe the answer is to make it noncriminal. But in a way that’s kind of giving up. It’s like making prostitution noncriminal, or gambling noncriminal, saying these things have always been with us so let’s just make them noncriminal.

And how about that, with regard, to these victimless crimes? Would you entertain the thought?

I would certainly entertain the thought, but I’m not sure that I am for it.

You couldn’t imagine being in the legislature and sponsoring such legislation?

I can hardly imagine my sponsoring such legislation, but I can imagine--so long as we’re imagining—my voting in favor of it.

To switch to a totally different area, in the case of the so-called Pentagon Papers, you shared the majority view of the Court that any kind of prior restraint on the newspapers involved in that case was out of bounds unless it could be justified on the basis of irreparable damage to the nation. Is there any circumstance besides a threat to national security in which prior restraint could be justified? For example, to assure a fair trial?

Well, the case of Near v. Minnesota [in which a lower court had shut down a newspaper for its “defamatory” content] is the case decided in 1931 in an opinion by Chief Justice Charles Evans Hughes upholding the proposition that prior restraint above all else violates the First and Fourteenth Amendments. In that case the exception to which he adverted was the movement of troopships in time of war, which obviously involves national security. Now, it’s hard for me to imagine anything not involving national security, at least broadly defined, that ever could justify a prior restraint under the Constitution. But just because you have a right to do something doesn’t mean it’s right to do it.

Do you think therefore, again as a citizen rather than a judge, that the newspapers have an obligation to censor themselves?