Potter Stewart

Potter Stewart
Born	Potter Stewart 23 1, 1915
Birthplace	Jackson, Michigan, U.S.
Died	Template:Death date and age Hanover, New Hampshire, U.S.
Nationality	American
Occupation	Lawyer, jurist
Known for	Associate Justice of the United States Supreme Court (1958–1981); "I know it when I see it" standard for obscenity
Education	Yale University (BA, LLB); University of Cambridge
Children	3

Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and jurist who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. Appointed by President Dwight D. Eisenhower, Stewart served for twenty-three years on the nation's highest court, where he became known for his carefully crafted opinions in areas including criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence. Born into a prominent Ohio Republican family, Stewart graduated from Yale College and Yale Law School, served in the United States Navy during World War II, practiced law in Cincinnati, and entered politics before ascending to the federal judiciary. He frequently found himself in the minority during the liberal Warren Court era but emerged as a pivotal centrist swing vote during the more conservative Burger Court years. Stewart is perhaps best remembered in popular culture for his concurring opinion in Jacobellis v. Ohio (1964), in which he wrote of hard-core pornography: "I know it when I see it." Upon his retirement in 1981, he was succeeded by Sandra Day O'Connor, the first woman to serve on the Supreme Court.

Early Life

Potter Stewart was born on January 23, 1915, in Jackson, Michigan. He came from an influential Ohio Republican political family. His father, James Garfield Stewart, was a prominent figure in Ohio politics and law who served as mayor of Cincinnati and later as a justice on the Ohio Supreme Court. Growing up in a household steeped in law and public service, Stewart was exposed to the workings of government and the judiciary from a young age.

The Stewart family relocated to Cincinnati, Ohio, where Potter spent much of his childhood and youth. The family settled in Indian Hill, an affluent suburb of Cincinnati. The environment in which Stewart was raised—surrounded by legal and political discourse—appears to have shaped his trajectory toward a career in law and public service.

Stewart's father, James Garfield Stewart, was named after President James A. Garfield, reflecting the family's deep ties to the Republican Party. The elder Stewart's career on the Ohio Supreme Court provided his son with a firsthand model of judicial temperament and the responsibilities of the bench.

Education

Stewart attended Yale College, where he graduated in 1937. During his undergraduate years, he was active in campus life and distinguished himself academically. Following his graduation from Yale College, Stewart pursued further study at the University of Cambridge in England, broadening his legal and intellectual horizons with an international perspective on law and governance.

Upon returning to the United States, Stewart enrolled at Yale Law School, from which he graduated in 1941. His years at Yale Law School, designated "LAW '41" in the university's records, would later become the basis for a Yale course examining Supreme Court history through his working papers. The course, taught by legal research lecturers Nicholas Mignanelli and Michael VanderHeijden, used Stewart's papers to explore how judges use historical materials in their decision-making processes.

Career

Military Service

Following his graduation from Yale Law School in 1941, Stewart entered the United States Navy Reserve and served during World War II. He held the rank of lieutenant (junior grade) during his service, which lasted from 1941 to 1945. His military service during the war would later be reflected in his burial at Arlington National Cemetery, a distinction reserved for veterans and other individuals who have rendered distinguished service to the nation.

Law Practice and Cincinnati Politics

After the conclusion of World War II, Stewart returned to Cincinnati, where he entered the practice of law. He also became involved in local politics, serving on the Cincinnati city council. His service on the city council reflected the family tradition of Republican civic engagement and provided him with practical experience in governance and public affairs. This combination of legal practice and political participation positioned Stewart as a rising figure in Ohio's legal and political circles.

United States Court of Appeals for the Sixth Circuit

In 1954, President Dwight D. Eisenhower appointed Stewart to a judgeship on the United States Court of Appeals for the Sixth Circuit. Stewart assumed his position on April 27, 1954, succeeding Judge Xenophon Hicks. At the time of his appointment, Stewart was only thirty-nine years old, making him one of the younger federal appellate judges in the country.

Stewart served on the Sixth Circuit for approximately four and a half years, from 1954 to 1958. During this period, he developed a reputation as a careful, moderate jurist. His work on the appellate bench demonstrated the analytical rigor and balanced approach that would characterize his later tenure on the Supreme Court. When Stewart departed the Sixth Circuit upon his elevation to the Supreme Court, he was succeeded by Judge Lester LeFevre Cecil.

Associate Justice of the United States Supreme Court

Nomination and Confirmation

In 1958, President Eisenhower nominated Stewart to the Supreme Court of the United States to succeed retiring Associate Justice Harold Hitz Burton. Eisenhower initially gave Stewart a recess appointment, and Stewart took his oath of office on October 14, 1958. The Senate subsequently confirmed his nomination; the confirmation vote took place in 1959. At forty-three years of age at the time of his appointment, Stewart was one of the younger justices to serve on the Court in the twentieth century.

Jurisprudential Approach

Stewart's judicial philosophy defied easy categorization. He was neither a strict constructionist nor a judicial activist in the mold of some of his contemporaries on the Warren Court. Instead, he approached cases with a pragmatic, case-by-case methodology that earned him a reputation as an independent-minded centrist.

During the Warren Court era (1958–1969), Stewart frequently found himself in dissent as the Court's liberal majority expanded constitutional protections in areas such as criminal defendants' rights, school prayer, and privacy. However, with the transition to the Burger Court in 1969, Stewart's centrist position became more influential, and he emerged as a key swing vote whose support was often necessary for building majority coalitions.

Stewart had a mixed record in First Amendment cases but was often supportive of individual liberty. His approach to constitutional interpretation emphasized the text and history of the Constitution while remaining attentive to the practical implications of judicial decisions.

Major Opinions

Stewart authored numerous significant opinions during his twenty-three years on the Court. Among his most notable majority opinions were:

Jones v. Alfred H. Mayer Co. (1968): Stewart wrote the majority opinion in this landmark civil rights case, in which the Court held that the Civil Rights Act of 1866 prohibited both private and governmental racial discrimination in the sale and rental of property. The decision significantly expanded the reach of federal civil rights protections by ruling that Congress had the authority under the Thirteenth Amendment to eliminate "badges and incidents of slavery," including private acts of racial discrimination in property transactions.

Katz v. United States (1967): In this influential Fourth Amendment case, Stewart authored the majority opinion that fundamentally reshaped the law of search and seizure. The Court held that the Fourth Amendment protects people, not places, and that the government's warrantless wiretapping of a public telephone booth constituted an unconstitutional search. Stewart wrote that "the Fourth Amendment protects people, not places," a formulation that expanded Fourth Amendment protections beyond physical trespass to encompass a reasonable expectation of privacy. This decision remains a foundational precedent in privacy law and electronic surveillance jurisprudence.

Chimel v. California (1969): Stewart wrote the majority opinion establishing limits on the scope of searches incident to a lawful arrest. The Court held that police officers may search only the area within the immediate control of an arrestee—the area from which the person might obtain a weapon or destroy evidence—without a warrant. This decision clarified and narrowed the permissible scope of warrantless searches connected to arrests.

Sierra Club v. Morton (1972): In this environmental law case, Stewart authored the majority opinion addressing the question of standing to bring suit under federal law. The Court held that the Sierra Club lacked standing to challenge the development of a ski resort in the Sequoia National Forest because it had not alleged that its members would be directly affected by the development. While the decision was a loss for the environmental organization, it clarified the requirements for standing in environmental litigation and influenced subsequent developments in environmental law.

Notable Dissents

Stewart also wrote several notable dissenting opinions that demonstrated his independent judicial thinking:

Engel v. Vitale (1962): When the Court ruled that officially sponsored prayer in public schools violated the Establishment Clause of the First Amendment, Stewart was the sole dissenter. He argued that the majority's decision misread the historical relationship between religion and government in American life.

Griswold v. Connecticut (1965): Stewart dissented from the Court's decision recognizing a constitutional right to marital privacy that invalidated a Connecticut law prohibiting the use of contraceptives. While Stewart described the Connecticut law as "an uncommonly silly law," he argued that the Constitution did not contain a general right to privacy that would invalidate the statute. His dissent questioned the jurisprudential basis for the majority's reasoning.

In re Gault (1967): Stewart dissented from the Court's decision extending certain due process protections to juvenile court proceedings, expressing concern about the potential impact on the rehabilitative purpose of the juvenile justice system.

"I Know It When I See It"

Stewart's most famous—and by his own admission, most enduring—contribution to American legal culture came in his concurring opinion in Jacobellis v. Ohio (1964). In this case, a theater owner had been convicted for showing a French film deemed obscene under Ohio law. The Court reversed the conviction, and Stewart wrote a concurring opinion in which he attempted to define what constituted "hard-core pornography" that could be constitutionally prohibited. Unable to articulate a precise definition, he wrote: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; 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."

The phrase "I know it when I see it" became one of the most widely quoted statements in American legal history. It entered popular culture as a shorthand for the difficulty of defining subjective standards. Stewart himself was aware of the phrase's lasting impact and, upon announcing his retirement in 1981, when asked if he had any regrets from his time on the Court, he remarked: "In a way, I regret having once said about obscenity 'I know it when I see it' because I think that's gonna be on my tombstone."

Retirement

Stewart retired from the Supreme Court on July 3, 1981, after twenty-three years of service. President Ronald Reagan nominated Sandra Day O'Connor to succeed him, making her the first woman to serve on the Supreme Court of the United States. Stewart's decision to retire at the age of sixty-six, while still in good health, was seen as an opportunity for him to pursue other interests after more than two decades on the bench.

Personal Life

Stewart married Mary Ann Bertles, and the couple had three children together. The family resided in the Cincinnati area during much of Stewart's career on the federal bench.

Stewart was known among his colleagues for his collegiality and his personal warmth. Correspondence preserved at the Library of Congress reveals that Stewart and fellow Justice Harry A. Blackmun shared an enthusiasm for baseball. Notes exchanged between the two justices during the 1973 American League Championships and the 1975 World Series have been documented in the Library of Congress manuscript collections.

On December 7, 1985, Stewart suffered a stroke and was hospitalized. He died the same day in Hanover, New Hampshire, at the age of seventy. He was buried at Arlington National Cemetery, in recognition of his military service during World War II.

Recognition

Stewart's contributions to American law have been recognized in several ways since his death. His working papers, preserved at Yale University, have become an important resource for legal scholars and historians studying the Supreme Court. In 2024, Yale Law School introduced a course that uses Stewart's working papers to explore how judges use historical materials in their decision-making processes. The course, taught by legal research lecturers Nicholas Mignanelli and Michael VanderHeijden, offers students an opportunity to examine the inner workings of Supreme Court deliberations through primary source documents.

The Council for Court Excellence in Washington, D.C., presents the Justice Potter Stewart Award to individuals who have made significant contributions to the administration of justice. In 2025, the award was presented to Susan Hoffman, a senior public service counsel at Crowell & Moring LLP, recognizing her work in the legal community.

Stewart's grave at Arlington National Cemetery is listed among the cemetery's notable gravesites, alongside those of other Supreme Court justices who served with military distinction.

The Supreme Court Historical Society has included Stewart in its profiles of associate justices, recognizing his service from 1958 to 1981 as a period of significant jurisprudential development.

Legacy

Potter Stewart's twenty-three-year tenure on the Supreme Court coincided with one of the most transformative periods in American constitutional law. Serving through both the Warren Court and the Burger Court eras, Stewart participated in landmark decisions that reshaped criminal procedure, civil rights, privacy law, and the relationship between government and the individual.

His majority opinion in Katz v. United States fundamentally altered Fourth Amendment jurisprudence by shifting the focus of search-and-seizure analysis from physical trespass to reasonable expectations of privacy. This framework has continued to inform legal debates about surveillance, technology, and privacy into the twenty-first century, as courts grapple with the implications of digital communications and electronic monitoring.

In the area of civil rights, Stewart's opinion in Jones v. Alfred H. Mayer Co. expanded the understanding of congressional power to enforce the Thirteenth Amendment and prohibit private racial discrimination. The decision remains an important precedent in civil rights law.

Stewart's dissents also left a lasting mark on legal discourse. His lone dissent in Engel v. Vitale articulated a position on the relationship between religion and public life that continued to resonate in subsequent Establishment Clause debates. His dissent in Griswold v. Connecticut, in which he characterized the law as "uncommonly silly" while maintaining that the Court lacked constitutional authority to strike it down, has been cited as an example of judicial restraint—the principle that a judge's personal views about the wisdom of a law should not determine its constitutionality.

The phrase "I know it when I see it" transcended its legal origins to become a widely used expression in American English, invoked in contexts ranging from art criticism to political discourse whenever someone attempts to describe a concept that resists precise definition. As Stewart himself predicted, the phrase has become his most recognized public legacy.

Stewart's role as a centrist on the Burger Court illustrated the importance of swing justices in shaping the direction of constitutional law. His pragmatic, case-by-case approach to adjudication stood in contrast to the more ideologically consistent philosophies of some of his colleagues, and it demonstrated that judicial moderation could be a powerful force in a polarized institution.