January 23, 1915 – Birth of Potter Stewart, 94th Supreme Court Justice

Potter Stewart was born into a powerful Ohio Republican family on this day in history. He attended Yale for both undergraduate studies and law school, made law review, and graduated cum laude in 1941. He took a job at a law firm, but enlisted in the Navy when WWII began, acting as defense counsel in court-martial proceedings.

After the war, Stewart joined a prominent law firm in Cincinnati, and in 1954, President Eisenhower appointed Stewart to a seat on the Sixth Circuit Court of Appeals. In 1958, President Eisenhower named Stewart to a recess appointment to replace retiring Justice Harold H. Burton on the Supreme Court. This was Eisenhower’s third recess appointment, and despite criticism of the practice, Justice Stewart was confirmed by the Senate in a 70-17 vote on May 5, 1959.

US Supreme Court official portrait of Potter Stewart, 1976

Oyez reports that Justice Stewart believed in judicial restraint, seeing the proper function of a judge as interpreting the law as it applied to a particular case, rather than attempting to assert judicial influence over matters he saw best left to the legislature. This put Stewart in the ideological center of the Court, and he became an influential swing vote on many cases.

One of his more well-known opinions was in the obscenity case Jacobellis v. Ohio (378 U.S. 184, 1964). Justice Stewart famously said that while he could not readily define the term “hard-core” pornography, “I know it when I see it.”

Justice Stewart stepped down from the Court in July of 1981 at age 66. He said that his decision was influenced by his desire to spend more time with his grandchildren while he was still in good health. In 1985, he died from a stroke and was buried in Arlington National Cemetery. Upon his death, journalist Bob Woodward revealed that Justice Stewart was the primary source for The Brethren, the seminal book on the inner workings of the Supreme Court.

Rowena Scott Comegys, in her article, “Potter Stewart: An Analysis of His Views on the Press as Fourth Estate,” 59 Chi.-Kent L. Rev. 157 (1982), online here, contends that Justice Stewart’s support for freedom of the press stood out as part of his legacy, writing:

Stewart indicated in judicial opinions and extrajudicial commentary that he believed that the press deserves a special place among American institutions. [He believed] the Freedom of Press Clause was a structural provision of the first amendment, which the framers thought necessary in order to assure ‘openness and honesty in government. . . an adequate flow of information between the people and their representatives . . . [and] a sufficient check on autocracy and despotism.’ As he said in his speech at Yale in 1974, ‘If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy.’”