In Memoriam: Justice Potter Stewart

by Lewis E Powell, Jr.*

Potter Stewart took his seat as an Associate Justice of the Supreme Court at the beginning of the October Term 1958. Shortly afterwards, he was asked whether he was a judicial "liberal" or "conservative' He replied with a characteristic distaste for simplistic labels, "I really can't say, except that I like to be thought of as a lawyer. At a press conference held more than twenty-two years later, and shortly after the announcement of his retirement from the Court, Justice Stewart was asked how he wished to be remembered. He answered, "[A]s a good lawyer who did his best."[2]

Potter Stewart was displaying his usual modesty. He will be remembered not merely as a "good lawyer but as a lawyer who personified those attributes necessary to success as a member of the judiciary. At the press conference marking his retirement, Justice Stewart identified the qualifications of a good judge: a high degree of legal competence, a judicial temperament, character, and diligence. These characteristics accurately describe Justice Stewart's own career on the Supreme Court. He was gifted as a legal scholar, had an admirable capacity for detachment, and, of course, possessed to a high degree the qualities of character and diligence.

Judges, and particularly Supreme Court Justices, are known to the public and the bar largely by their written opinions. Justices do not explain or defend their decisions outside the Court. Members of the Court, however, see one another in a more intimate way, and personal qualities not known to the public are important to us. Potter Stewart was a congenial, thoughtful, and generous colleague, always willing–despite the pressures under which we work–to assist or confer with other Justices. He also had a high sense of institutional responsibility, recognizing that the Court itself–and not its temporal members individually–inspires the respect and confidence so necessary to its role.

One is often asked about the strong feelings expressed in dissenting opinions. Any Supreme Court Justice, when distressed by a Court opinion with which that Justice sharply disagrees, may write in terms that seem to reflect on the good sense as well as the judicial competence of the Justices who joined the opinion. Potter Stewart accepted with good humor this tradition of vigorous dissent, recognizing that professional conflicts are an inevitable part of our work and should never be confused with personal animosity. He put it this way: "I hope one of the first things that a lawyer learns is that personal differences, or likes or dislikes, have nothing whatever to do with professional differences."[3] This lesson is as true for judges as it is for lawyers who represent opposing parties. Justice Stewart liked and respected–though perhaps indifferent degrees –each of the Justices with whom he served over the course of almost twenty-three years.

Justice Stewart's personality was displayed in public in the courtroom. Oral argument before the Supreme Court offers each litigant the opportunity to present his contentions and to respond to his adversary's position. Justice Stewart used oral argument to add an extra dimension to the Court's consideration of a case. Often he would lean forward on the bench and, through careful inquiry, force counsel to explain the underpinnings and confront the weaknesses of their reasoning. He skillfully used oral argument as a means of ensuring the kind of clarity of thought that exemplified his own writing.

The ability to express oneself in a simple but precise manner is, after all, one of the primary skills of a lawyer or judge. Justice Stewart wrote with a talent for phrasemaking that helped to convey complicated ideas in a few memorable words. Because he is weary of being reminded of his famous definition of obscenity,[4] I will cite a less publicized, but equally forceful, example. In Walker v. City of Birmingham,[5] in which the Court held that an injunction must be attacked through legal proceedings and may not simply be ignored, Justice Stewart stated the essence of the rule of law in a single sentence: "[R]espect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom."[6]

Potter Stewart's ability to combine crisp language with precise reasoning was demonstrated by his contributions to the jurisprudence of the fourth amendment. His opinion for the court in Katz v. United States[7] revitalized fourth amendment analysis. Before Katz, the federal courts had been prone to view the fourth amendment solely as a limitation of physical trespass by law enforcement officials. But Justice Stewart's opinion swept away the artificial distinctions upon which earlier fourth amendment decisions had rested. The Court held that persons who stand in public telephone booths, no less than persons who sit in their homes, are entitled to assume that their private conversations will remain secure from unwarranted police interception. With his usual flair, Justice Stewart explained that "the Fourth Amendment protects people, not places."[8]

Justice Stewart's opinions for the Court also established a second crucial principle of fourth amendment analysis. The amendment protects against "unreasonable searches and seizures" and provides that "no Warrants shall issue, but upon probable cause." His opinions cemented the relationship between these two clauses. He wrote, and the Court held, that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment–subject only to a few specifically established and well-delineated exceptions."[9]

The fourth amendment writings of Potter Stewart demonstrate that in the field of criminal procedure, as in other areas of constitutional jurisprudence, Justice Stewart sought to fulfill the Court's responsibility to say what the law is. In so doing, he confronted each issue in its own context, without the ideological bias that hampers a principled view of law and fact. Because his vote in cases was said to be "unpredictable;"[10] Potter Stewart was sometimes labeled a "swing" vote. There is no doubt that, both during the expansive years of the Warren Court and the more traditional years of the Burger Court, Justice Stewart was a voice of moderation. But he was always more than a check on judicial excess. As his fourth amendment opinions for the Court demonstrate, Justice Stewart was not hesitant to apply forcefully the commands of the constitution in uncharted territory.

In carrying out his responsibilities on the Supreme Court, Justice Stewart was ever conscious of the distinction between his personal preference and the proper role of a judge. "[T]he first duty of a justice," he said, is "to remove from his judicial work his own moral, philosophical, political, or religious beliefs?"[11] Justice Stewart elaborated this central principle of the judicial role in his opinion upholding the constitutionality of the Hyde Amendment, the federal statute that restricted funding for abortions. He wrote:

Justice Stewart understood the proper role of the judiciary as well as any person who has served on this Court. He brought intelligence and wisdom to that role. He interpreted the Constitution in light of present day controversies without being swayed by transient political or social passions. Potter Stewart was, in short, a superb colleague and a quintessential judge.

Endnotes

* The Editor gratefully acknowledges Justice Powell and the Harvard Law Review for their permission to reprint Justice Powell's tribute to Associate Justice Potter Stewart. This article was first published in the Harvard Law Review, Volume 95, No. 1, (November 1981).

1. Israel, Potter Stewart, in 4 The Justices of the Supreme Court, 1789-1969, at 2921, 2921 (L. Friedman & J. Israel eds. 1969).
2. N.Y. Times, June 20, 1981, at A9, col. 3.
3. Wash. Post, June 20, 1981, at A1, A9, col. 3.
4. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
5. 388 U.S. 307 (1967).
6. Id. at 321.
7. 389 U.S. 347 (1967).
8. Id. at 351; see Mincey v. Arizona, 437 U.S. 385, 391-92 (1978) (Stewart, J.); Michigan v. Tyler, 436 U.S. 499, 505-06 (1978) (Stewart, J.).
9. Katz, 389 U.S. at 357 (footnotes omitted); see Vale v. Louisiana, 399 U.S. 30, 14 (1970) (Stewart, J.).
10. Many observers of the Court like to categorize Justices as liberal, conservative, moderate, swing voters, predictable, or unpredictable. We do not all share, of course, the same view of federalism, separation of powers, and the correct meaning of the sweeping language of the Constitution. We may not always agree on the proper role of the Court itself. We come to the Court with different professional experiences. But given these differences, I have found from nearly ten years of service on the Court that predicting votes in a particular case is hazardous business.
11. Wash. Post. June 20, 1981, at A1, col. 1.
12. Harris v. McRae, 448 U.S. 297, 326 (1980) (quoting Williamsen v. Lee Optical, Inc., 348 U.S. 483, 488 (1955)).