Retired Justice Potter Stewart Dies After Stroke

Retired Supreme Court Justice Potter Stewart, a judicial moderate whose 23-year tenure was marked by concise, quotable and sometimes wry commentary in the opinions he wrote for the court, died Saturday in a New Hampshire hospital. He was 70 years old.

A spokesman for Dartmouth-Hitchcock Medical Center in Hanover, N. H., said that Stewart died at 3:20 p.m. He had been admitted last Monday after suffering a stroke at his daughter’s home in Putney, Vt.

Stewart retired from the bench on July 3, 1981, and President Reagan filled the vacancy with the historic appointment of Sandra Day O’Connor, the first woman on the court.

Since then, Stewart had maintained an office in the Supreme Court building and, like other retired federal judges, served temporarily on appeals court panels. He served also on presidential commissions, lectured at law schools and volunteered to read textbooks to blind law students.

On the bench, he shunned rigid ideology and unyielding commitment to judicial theory, preferring instead a common-sense, case-by-case approach to often complex legal issues. In private, he was friendly and gracious and often displayed a keen sense of humor.

Role as ‘Swing Vote’

Stewart never gained fame as a legal scholar or as a commanding intellectual force on the nine-member court, but he often played a pivotal role as a “swing vote” in the court’s philosophical center. And his plainly stated, sometimes eloquent opinions made him one of the most quoted justices.

It was Stewart, commenting on the difficulty of articulating a legal definition of obscenity, who remarked in 1964 that, although he might not be able to define hard-core pornography, “I know it when I see it.”

The phrase was--and is--often repeated in legal circles and applied to many subjects besides obscenity. Stewart confessed years later that he regretted having written it. “I think that’s going to be on my tombstone,” he ruefully told reporters in 1981.

Stewart’s record on the court defied an easy label. He joined conservatives in dissenting in 1966 when the court adopted the controversial “Miranda rule,” that criminal suspects must be informed of their rights to remain silent and to have legal counsel before they are interrogated by police.

Dissent in Prayer Ruling

And his was the lone dissent to the landmark decision in 1962 that it was unconstitutional for students in public schools to be led in voluntary, nondenominational prayer.

However, Stewart often joined liberals on the court in cases involving freedom of speech and freedom of the press. When the court ruled in 1972 that reporters could be required to identify confidential sources to grand juries, Stewart briskly dissented. He said that the court’s “crabbed view” of the First Amendment showed a “disturbing insensitivity to the critical role of an independent press in our society.”

In 1976, he wrote the majority opinion when the court held that racially segregated private schools must be held in violation of federal civil rights law when they exclude black students. That same year, he wrote for the majority that city officials responsible for segregated public housing could be ordered to develop a desegregated housing program throughout a metropolitan area.

Views on Death Penalty

Stewart played an important role when the court struck down the death penalty in 1972, and when it restored it four years later.

Stewart joined the majority in a 5-4 decision invalidating state capital punishment laws. The court said the laws provided insufficient guidance to juries and were therefore arbitrary and capricious in application, a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.

“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Stewart wrote in another opinion that was to be widely quoted.

But, in 1976, when some new state laws providing juries with guided discretion in imposing the death penalty came before the justices, Stewart joined six other justices in approving them.

‘An Extreme Sanction’

“We cannot say that the punishment is invariably disproportionate to the crime,” he wrote. “It is an extreme sanction, suitable to the most extreme of crimes.”

On occasion, his indignation over a court decision surfaced on the bench. Justices rarely read dissents aloud in court, preferring to let their written opinions speak for themselves. But, in 1978, when the court ruled that judges were protected by absolute immunity and that an Indiana jurist who approved the sterilization of a 15-year-old girl without her knowledge or consent could not be sued for damages, Stewart read his dissent aloud in a sharp tone before a rapt courtroom audience:

“A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he acts in his judicial capacity,” he said.

Stewart was born in Jackson, Mich., on Jan. 23, 1915, one of three children. His father, James Garfield Stewart, became mayor of Cincinnati and a judge on the Ohio Supreme Court.

Edited Yale Law Journal

After graduation from Hotchkiss School in Lakeville, Conn., Potter Stewart entered Yale University, where he majored in English literature and became chairman of the Yale Daily News. He was elected to the honor society Phi Beta Kappa, received a bachelor’s degree in 1937 and spent one summer working as a reporter on the Cincinnati Times-Star. Later, he studied international law at Cambridge University and then entered Yale Law School. He was editor of the Yale Law Journal and received a law degree in 1941.

He served as an officer in the Navy and won three battle stars. After World War II, he returned to Cincinnati, entered private practice and served on the city council.

Eisenhower Appointee

In 1954, President Dwight D. Eisenhower appointed Stewart to the federal court of appeals in Cincinnati. Four years later, Eisenhower elevated him to the Supreme Court to fill a vacancy left by the retirement of Justice Harold H. Burton.

Stewart’s retirement in 1981 was unexpected. He had informed Chief Justice Warren E. Burger, his close friend Vice President George Bush and President Reagan of his intention, but did not inform his other colleagues at the court until the day his resignation was announced.

“It’s better to go too soon than to stay too long,” he said.