July 2009: Potter Stewart '33

Potter Stewart ’33 was one of the giants of the Supreme Court in the 20th century. Stewart was born in 1915, son of James Garfield Stewart and Harriet Loomis Potter. James was the Republican mayor of Cincinnati and later served as a chief justice of the Ohio Supreme Court.

After graduating Phi Beta Kappa from Yale University in 1937, Stewart went on to Yale Law School, from which he earned his degree in 1941. He was also a fellow of Cambridge University from 1937-1938. At Yale Law, where he was editor of the Yale Law Journal, he attended classes at the same time as Gerald R. Ford, Cyrus R. Vance, and Byron R. White, who would later become his colleague on the Supreme Court.

After serving during World War II as a naval officer and attaining the rank of lieutenant junior grade, Stewart entered private practice and local politics. He joined the law firm of Dinsmore & Shohl, LLP, in Cincinnati and in 1954, at the age of 39, was appointed to the United States Court of Appeals for the Sixth Circuit. In 1958, he was nominated by President Eisenhower to replace Justice Harold Hitz Burton on the Supreme Court, where he served until his retirement in 1981. Stewart’s 23-year tenure on the Supreme Court coincided with the eras of Chief Justices Earl Warren and Warren Burger.

Though described as ideologically conservative and known to side with conservative justices on equal protections, Justice Stewart would often vote with the liberal justices on First Amendment issues; he was thus known as a centrist on the Court. He will long be remembered for his concurrence in a pornography case, Jacobellis v. Ohio. Unable to formulate a definition of pornography, he declared, “I shall not today attempt further to define the kinds of material I understand to be embraced within [the term ‘hard-core pornography’]; 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.” He went on to defend the movie in question against further censorship.

In 1972 Stewart joined the decision in Furman v. Georgia that invalidated all death penalty laws. Four years later he joined in the Court’s decision in Gregg v. Georgia, upholding the revised capital punishment legislation adopted in a majority of the states. He was also a key mover behind the Court’s decision in Roe v. Wade in 1973, which recognized the right to abortion under the “Right of Privacy.”

For a time it was thought that President Nixon would appoint Stewart to the post of chief justice, but Stewart asked Nixon to have his name removed from consideration as he did not want to appear again before the Senate in the confirmation process. Warren Burger was appointed as chief justice instead. Stewart went on to play a significant role in formulating the Court’s unanimous opinion in Nixon v. United States (1974), which ordered President Richard M. Nixon to surrender to the special prosecutor the tape recordings whose disclosure later led Nixon to resign. Stewart remained on the Court until his retirement in July 1981. He was succeeded by Sandra Day O’Connor, the first woman to serve on the Court.

In 1959, Stewart was presented with The Hotchkiss School Alumni Award, the School’s highest honor. Potter Stewart died on December 7, 1985.

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