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?

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.

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?

Yes, I do think they have an obligation to be responsible and, if you will, to censor themselves.

Do you share the view of some critics that the news media are not always responsible and that something might be done on this score?

I believe that they are not always responsible, but as to correctives, I don’t know. It’s a very highly competitive business. I know that—I used to work for a newspaper during summers when I was in college. But I think a different tradition—and traditions are terribly important—might be the answer.

How does current investigative reporting compare with that of the muckrakers early in the century? Theirs has since been considered a very valuable contribution.

Yes, I know it is by contrast with just taking self-serving handouts from government. Somewhere in between lies the proper way of proceeding. But it’s hard to find.

 

Regarding censorship on another front, you once said that you could not define obscenity but you knew it when you saw it. You may not have been entirely serious when you said that, but is a definition possible? And if not, what do you do about it?

It’s a very subjective matter. And when one thinks that by calling something obscene it can be suppressed—whether it be Das Kapital or Mein Kampf or whatever—it’s a very tricky and potentially dangerous position. But it is highly subjective.

You can’t have a blanket rule, then, as to what school boards should allow or not allow on their high school library bookshelves?

Since not everything can be on a high school’s library bookshelf, the school board has a great deal of discretion in the matter.

Is it, then, the role of the Court to either support the board or overrule it?

No, I think not. I think a choice of books is the school board’s job.

That is contrary to the recent decision in the Long Island case [in which students claimed that the removal of books from their school’s shelves violated the First Amendment].

I expect it is, yes, but that was a kind of nondecision. [While declining to rule on the merits of the case, the Court upheld the right of the students to sue their school board.]

But it did allow the books to be put back.

That’s right. It remanded the case to the lower court, and the board then dropped it, I think.

In 1962 you dissented from a ruling that would ban secular prayer in New York schools. Of course I realize the prayers were not compulsory, but if your view had prevailed, mightn’t it have created difficulties for children whose parents didn’t want them to take part?

If the issue had been the free exercise of religion clause of the First Amendment, it would have been a much more difficult case for me. But it was cast in terms of the clause prohibiting the establishment of religion in the same First Amendment. Nobody claimed that the prayer was compulsory. But the Court found nevertheless that it was violating the establishment clause, which was put in the Constitution so we would not have a Church of England or the equivalent in this country.

Does that mean that you would uphold a school prayer where there is no compulsory element at all, simply a voluntary prayer or a silent moment?

Not if there was a claim that any child was compelled to observe it. There was no compulsion, psychological or otherwise, in the case we are discussing.

Mightn’t you find some ground for suspecting psychological compulsion even if the law was purely voluntary? I mean if the children felt obliged to take part?

If they felt obliged to, there might be a violation of their constitutional rights to the free exercise of their religion, which includes the right of nonbelievers.

Wouldn’t that always be the case?

Well, it wasn’t decided so in that case. It was decided on the establishment clause.

On the Court you favored legalizing abortions in the first six months, but later you were against the use of Medicaid funds for this purpose. Since you would not refuse financial aid for other medical purposes, why would you deny it for this one?

Let me put it this way. The First Amendment gives us, among other things, the right of a free press, but that does not obligate the federal government or any government to supply printing presses to people. For free. Here, it seems to me, is the same difference.

What you’re saying is that it’s one thing to legalize abortion and another thing to finance it?

Exactly, exactly, exactly. It doesn’t follow at all that if a person has a constitutional right to do something, he or she has a constitutional right to be subsidized.

Even though he is covered in all other medical matters?

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?

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?

Insofar as it was accurate I didn’t mind it so much. There were many inaccuracies in the book which most people might call minor inaccuracies but which I do not consider minor. But insofar as it was accurate, there’s no reason on earth that the American people should not know these things. It seems to me, with nine members of the Court representing different backgrounds, geographically and in much more important ways, that there are inevitably going to be differences of opinion and differences of approach to the novel and difficult issues that come before this Court. There is inevitably going to be give and take in reaching a Court opinion. And since that’s not only inevitable but right and intended, it should not come as a surprise to anybody.

Mr. Justice, what decided you on a law career? Is public life a Stewart family tradition?

Well, my father was a lawyer, and his father was a lawyer. I grew up listening at the family dinner table to stories of my father about his days in court. He later became a member of the Supreme Court of Ohio. His father had no public life apart from fighting in the Civil War. I just always assumed I was going to be a lawyer, although that assumption was shaken somewhat in my senior year in college. I was chairman of the Yale Daily News and I toyed with the idea of becoming a journalist. I had at the time an offer from Henry Luce of fifty dollars a week, then a very princely salary, so I went off to Cambridge, England, on a fellowship to think it over. I’d already been admitted to the Yale Law School, but I didn’t know whether I really wanted to go. In the end I decided to follow law rather than journalism.

When you were in law school, did it ever occur to you that you might wind up on the high bench?

Never, never, never, never. No. But I have often thought that if somebody had stood in front of our class and said, one of you birds is going to be President of the United States, and it’s up to each one of you to write down on a piece of paper who you think it’s going to be, everyone would have gotten at least one vote except our classmate Jerry Ford. At least each of us would have voted for himself, but Jerry Ford and the rest of us all knew that he was going to return to Grand Rapids and practice law. And that’s what nearly happened.