Potter Stewart was born on January 23, 1915, in Jackson, Michigan, the eldest son of James Garfield Stewart and Harriet Loomis Potter Stewart. His father was a lawyer, a local politician, and, eventually, a justice on the Ohio Supreme Court from 1947 until his death in 1959, a year after his son had taken a seat on the U.S. Supreme Court.
In his youth Potter enjoyed the privileges of modest wealth, including an education first at Cincinnati’s University School and then later at the Hotchkiss School in Connecticut. To these opportunities he added an undergraduate degree at Yale in 1937 and, after a one-year fellowship at Cambridge University, a degree from the Yale Law School in 1941. While in law school, he served as an editor of the Tale Law Journal. This honor was characteristic of the outstanding academic ability Stewart demonstrated throughout his undergraduate and law school days.
After law school, Stewart worked briefly for a New York City law firm, but World War II found him serving in the Navy' as an officer aboard fuel tankers, “floating around in a sea of 100 octane gas,” as he later described it, “bored to death ninety-nine per cent of the time and scared to death one per cent.” While still serving in the armed forces, Stewart met and, on April 24, 1943, married Mary Aim Berries, with whom he had three children: Harriet, Potter, Jr., and David. In 1945, after the war was over, Stewart returned for a short time to New York but soon chose instead to pursue a legal career with a firm in Cincinnati. There he followed in Inis father’s footsteps by participating in local politics, winning election to the Cincinnati City Council in 1949 and 1951 and serving a term as vicemayor from 1952 to 1953.
In 1954, when Stewart w'as only 39 years old, President Dwight D. Eisenhower appointed him a judge on the U.S. Court of Appeals for the Sixth Circuit. Here, in spite of his Republican background, Stewart generally held to a moderate course. Four years after tins appointment to the federal bench, Eisenhower appointed Stewart on an interim basis to fill the vacancy left by Associate Justice Harold Burton’s retirement. Potter Stewart began service on the Court on October 14, 1958, and was formally confirmed by the Senate on May 5, 1959, after it had returned from recess, by a vote of 70-17.
Bar: Ohio 1941, New York 1942.
Potter Stewart joined a Court fairly evenly divided between jurists of a conservative bent, who generally advocated a restrained use of the Court’s power, and tiiose of a more liberal inclination, willing to wield the Court’s authority more aggressively to protect civil rights and civil liberties. Stew-art labored to escape categorization in either of tiiese camps and became, by con-sequence, a swing vote on die Court. He tended to side with conservatives in his respect for state power, thus joining in the decision of National League of Cities v. Usery (1976), which denied that Congress had the power to regulate the wages and hours of state and municipal employees. Moreover, in a series of criminal procedure cases, including Miranda v. Arizona (1966), Stew'art dissented against the Court’s subjection of state criminal practices to various regulations and restrictions of the Bill of Rights. He also dissented from the Court’s decision in Griswold v. Connecticut (1965) recognizing a constitutional right of privacy that w'as violated by a state law' prohibiting the use of contraceptive devices. Though Stewart characterized the law' as “uncommonly silly,” he denied that silliness was a constitutional defect.
Stewart could be found equally often in the camp of the Court’s more liberal justices. For example, he joined in the Court’s pronouncement of a moratorium on the use of the death penalty in Furman v. Georgia (1972), because its application in state criminal law' proceedings seemed to be completely haphazard and thus violated the Eighth Amendment’s cruel and unusual punishments clause. “These death sentences,” he explained in a concurring opinion, “are cruel and unusual in the same w'ay that being struck by lightning is cruel and unusual.” Stew'art also wrote die opinion for the Court’s majority in Jones v. Alfred H. Mayer Co. (1968), which upheld die authority of Congress to prohibit private racial discrimination in housing dirough its power under the 13th Amendment to abolish bodi slavery itself and the “badges and incidences” of slavery.
Justice Stewrart preferred to resolve constitutional issues as narrowly as possible, and thus he purposefully declined to elaborate the kind of doctrinal overviews that sometimes permit a justice to influence the broad course of constitutional development. He preferred instead to focus primarily on the case at hand. Though this focus often made his vote important in particular cases, it tended to deny him a lasting influence on constitutional doctrine. He is generally regarded, however, to have been better than average at the work of crafting judicial opinions. He also had the gift of aphorism, and some of his constitutional one-liners became widely quoted, none more so than a quip from his opinion for the Court in Jacobellis v. Ohio (1962), an obscenity case. At the time, the Court was wresding with die task of defining obscenity or “hard-core” pornography, a category of speech recognized by the Court then and now to fall generally outside the protections of the First Amendment. In a separate opinion, Justice Stewart explained his own reasons for finding that the film at issue in the case was protected by the First Amendment. “I shall not today attempt further to define die kinds of material I understand to be embraced within [die category of “hard-core” pornography,” he wrote, “and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
Served as lieutenant United States Naval Reserve, 1942-1945. Member American, Ohio, Cincinnati, City New York bar associations, American Law Institute, Yale Law School Association (honorary), Phi Beta Kappa, Delta Kappa Epsilon, Phi Delta Phi, Order of Coif. Clubs: Camargo (Cincinnati), Commonwealth (Cincinnati), Commercial (Cincinnati), University (Cincinnati).
University (Washington), Chevy Chase (Washington). Century (New York City). Bohemian (San Francisco).
Married Mary Ann Bertles, April 24, 1943. Children– Harriet Virkstis, Potter, David Bertles.
