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

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Well, if it were in all other, then you would have a different constitutional argument under the equal protection component of the Fifth Amendment as to due process.

Mr. Justice, the Warren Court was criticized very widely for allegedly straining the role of the judiciary in setting new social goals for the country instead of leaving that to the legislative branch. Do you think that it did violate this balance of power?

I think that in many cases it did, because I think that Chief Justice Warren, 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. His best friend or greatest admirer would not say he was a great lawyer or great legal scholar. He wasn’t and he didn’t pretend to be. That was part of his greatness. But I think he went wrong sometimes.

In your view as a citizen, is the country better off for the Warren regime?

I think the Court is perhaps not so well off. The Court is on dangerous ground when it decides cases according to the justices’ own social or economic or political or religious views. After all, we live in a republic, and the justices of this Court are not platonic guardians, no matter how wise they are. I think it’s terribly important that they exercise self-restraint.

How about the reverse situation: should the Congress be allowed to curb the courts by legislation subsequent to a Supreme Court decision, such as denying them jurisdiction on particular kinds of legislation?

I think such an attempted curb would be unwise and, depending upon what form it took, it might raise serious constitutional questions. The traditional way of correcting a Supreme Court decision has been by constitutional amendment. And that has happened at least three times that I can think of. One had to do with suing states- that’s the Eleventh Amendment; one had to do with a progressive income tax; and one had to do with women’s suffrage. Each reversed a specific Supreme Court decision, and it’s not easy to amend the Constitution. That has to be proposed by a two-thirds majority of both houses of Congress and adopted by three-quarters of the states.

Would you regard a congressional attempt to circumvent this procedure as unconstitutional?

I think it would depend on what form the legislation took. The Supreme Court of the United States is created by the Constitution itself; it’s the only court that is created by the Constitution. The Constitution merely authorizes Congress to create other federal courts— district courts and courts of appeals which we now have, and which have been authorized by Congress. So I think limiting the jurisdiction of the Supreme Court of the United States by statute would be much different from limiting the jurisdiction of the district courts and the courts of appeals. After all, the argument can be made that if Congress is free not to create those lower courts at all, it is free to limit their jurisdiction. And that’s a pretty good argument. But the Supreme Court of the United States is created by the Constitution itself, not by the Congress, and therefore any tinkering with its jurisdiction might lead to grave constitutional questions.

A free press doesn’t mean the government must supply printing presses to people.

In your view, is there validity in the contention of the “Moral Majority” that the country’s moral standards have gone down in recent years?

I think the country’s moral standards have gone down. But I don’t think it’s particularly the fault of the courts. I think it may be the result of a lot of forces now at work. Certainly we live in a more permissive society than the one into which I was born.

That is perhaps true in some personal relations —family life and so on—but in terms of public corruption, I wonder.

Well, I wonder too. Perhaps there’s less of it than there was—consider the administrations of Grant and Harding, for instance—and I say this in spite of Watergate. But there is even more crime than there was at the bottom of the Depression, although economic factors are often blamed for the increase in crime. One wonders about the validity of blaming economic factors when one remembers that in the 1930s the crime rate, relatively speaking, was not high.

Do you approve of the government’s effort to get at official corruption by the procedures used in ABSCAM?

Well, there’s a doctrine called entrapment, which has a funny history in this Court. It may have been approached in the ABSCAM cases, but it was for the courts to decide whether or not the government was guilty of entrapment. I don’t know enough about the cases to have an opinion. Certainly good police work can get very close to entrapment in some cases.

But just reading about that episode in the media, do you have an opinion on whether or not the FBI’s hiring of pseudo-Arabs and so on, and going after congressmen who did not, as far as anybody knew, have a history of taking bribes, would constitute entrapment?