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

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The test is, would the defendant have done it anyway? And that would depend upon the proof in any individual case. The fact is that, as I remember it, a lot of legislators simply didn’t respond to the “Arabs’” invitation or simply said no to the enticements. The test is the propensity of a particular defendant.

Propensity in that case or propensity in the past?

In that case—there’s always a first time.

Isn’t it a matter of concern, then, that the government should tempt people into committing an offense?

It’s a matter of great concern to me. I wrote a dissenting opinion in a similar case, but it was a dissenting opinion, and when I went to law school we had a professor who said dissenting opinions are nothing but subversive literature.

I’m sure that you have some kind of philosophy with which you approach the questions of the day. Could you characterize it?

I have always been very critical of colleagues and judges who ask themselves: Now what’s the liberal side of this case or what’s the conservative side of this case, because that’s the way I want to decide it. That’s a terribly unfair and improper thing to do, it seems to me, and it’s unfair to the litigants. How would you like to be a litigant and find, say, a woman on the bench who had been appointed just because she was a woman, to favor women, and your lawsuit was against a woman? You wouldn’t like it. Or if you had a judge of a particular ethnic background who was there only because of that ethnic background. You wouldn’t like it if your opponent were a litigant of that ethnic background. That’s not the function of a judge. It is the judge’s primary duty to remove from his judicial work his own political or religious or moral or philosophical or social ideas. But that doesn’t mean that I don’t have them; it does mean that it’s my duty as a judge to remove them from my judicial work.

I just wonder if there is some broad philosophy with which you would approach questions today that have nothing to do with decisions that you might make on the bench.

I guess I’m a civil libertarian and in many ways I feel stronger in my personal opinions than I would ever decide the Constitution required me to be as a judge.

Looking back, could you name some of the persons in public life in your time for whom you have the greatest regard.

Well, Justice John Marshall Harlan, Justice Black, Chief Justice Warren, to name three of my colleagues who are now gone. Justice Frankfurter was another. He was a very, very learned fellow who knew everything there was to know about everything. I remember when my brother became engaged, Frankfurter asked me, “Do you know about your brother’s fiancée?” Well, I didn’t know much about her, but that afternoon he sent me three books about her great-grandfather. I was also a great admirer of President Eisenhower and President Kennedy. Maybe I’m the only person in the country—I’ve been told I was—who voted for both Barry Goldwater and George McGovern for President of the United States, although I didn’t believe either would be elected. I didn’t want their opponents—Lyndon Johnson and Richard Nixon—to have landslides, which both of them did, to their disadvantage and to the country’s. I felt that landslides were bad things. Franklin Roosevelt’s landslide in 1936 was followed by his Court-packing plan.

It is a judge’s primary duty to remove from his judicial work his personal beliefs.

Are you suggesting that Roosevelt’s Court-backing plan was the result of his overconfidence as a result of the 1936 landslide?

Yes.

Haven’t there been other instances in history where the number of justices was changed?

Oh, yes, there’s nothing in the Constitution that requires nine members on the Supreme Court. The fact is that it’s been nine for over a hundred years, but the original Court was six and it got up as high as ten for a while. So it varied. But Roosevelt tried to tinker with the Court for political reasons, and that was resented by the American people, who had just returned him to the Presidency in every state but Maine and Vermont.

Would you care to comment at all on a book, which you may have read, called The Brethren, by Woodward and Armstrong?

I took it home and read it on a weekend, from cover to cover, closed it, and haven’t looked at it since.

Does the intimate machinery of the Court, which was the subject of that book, and even the Court’s personal aspects—does that come under the people’s right to know?