Retired Justice Stewart on ‘Critical’ List : Stroke Victim Known as Swing Vote on Warren, Burger Courts

Retired Supreme Court Justice Potter Stewart suffered a stroke earlier in the week and was in critical condition Friday, a hospital spokesman said.

“He is gravely ill,” Toni House, speaking for the court, said in Washington.

Stewart, 70, was visiting his daughter in Putney, Vt., when he suffered a stroke and was rushed to Mary Hitchcock Memorial Hospital in Hanover on Monday.

Mike Noble, at the hospital, said that Stewart “was admitted Dec. 2 after suffering a stroke. He is in critical condition. At the request of the family, no other information is being released.”

Stewart stepped down from the court in July, 1981, after 23 years, saying he wanted to spend more time with his grandchildren. The vacancy was filled by the first woman appointed to the court, Sandra Day O’Connor.

His Retirement Wish

In a news conference after announcing his retirement, Stewart said he wanted to be remembered “as a good lawyer who did his best.”

On Stewart’s last day on the bench, Chief Justice Warren Burger told him: “You will be missed in the deliberations at the conference table, where your close grasp of the cases decided during your long tenure . . . were a valuable resource to the court.”

Stewart, of Ohio, was appointed to the high court in 1958 by President Dwight D. Eisenhower.

He was known for many years as a swing vote on the court under the liberal Chief Justice Earl Warren and, later, under the conservative Burger. He dissented relatively rarely and joined the majority in many of the major decisions made while he was on the bench.

Abortion, Voting Rights

Although he did not write the decisions, Stewart went along on the finding that women have a constitutional right to have abortions and on applying the “one person, one vote” rule to state legislatures.

On religious matters, Stewart was the lone dissenter when the high court struck down laws allowing organized prayer in public schools.

Stewart will likely be better remembered for writing the Supreme Court’s 1976 decision upholding the constitutionality of capital punishment.

Stewart squarely faced the constitutional issue of the death penalty and called capital punishment “an expression of society’s moral outrage at particularly offensive conduct.” Because more than 30 legislatures had passed new death penalty laws at the time of the decision, he said, it was clear that the sentence was not viewed as cruel and unusual punishment.

On the bench, Stewart was known for his keen wit and his facile writing style.

That style yielded, in a ruling on obscenity, a line that became Stewart’s most famous. He admitted being unable to devise a working definition of obscenity, but added: “I know it when I see it.”