Potter Stewart, A man with a great name, and a great vision

Potter Stewart… My Kind of Textualist

After reading his dissent within the Griswold v. Connecticut I was intrigued with his convictions towards textulism and the way he staunchly refused the ‘penumbra’ of inferred privacy the Bill of Rights is said to contain. Before this reading the only thing I had known of this Warren era Justice was his famous “ I know it when I see it’ obscenity quote from Miller v. California, and by the second line in, I was hooked. The more I read of him the more I respect the way he used Framer’s intent (a flawed method, I would grant, but I have yet to come across a ‘perfect’ way to read the Constitution) to assist in sculpting the modern way civil rights, privacy, freedom of religion and free speech are viewed in this nation. Whether with or against the majority, Potter Stewart ( sweet name, right? )had his hand in some of the largest cases of the 20th Century.
#5. Miller v. California 1972

As discussed above, Miller v. California is a landmark case concerning the distribution and production of hardcore pornography and its status as protected speech under the 1st Amendment. The question before the court asked whether the distribution of ‘obscene materials’ was protected speech. And by affirming again that obscenity was unprotected, the Court gave strength to the Federal and state governments in cracking down on all forms of real- life pornography (remember this was 1962, well before the xxx.com boom that came with the internet). Why does this matter in our current lives ? Through the language of the court, communities are allowed to set up their own standards for obscenity, which is why you can sunbathe nude in San Francisco but you can’t purchase Hustler in Salt Lake City. Why was this a huge case to Stewart ? His dissent alongside the rigid textualist Justice Black warned against the ‘inherent dangers of undertaking to regulate any form of expression’ and many, Stewart included encouraged the public to take up a constitutional amendment defining obscenity, which never happened.

#4 Griswold v. Connecticut 1965

This is the case that made me really take to Mr. Potter Stewart’s ( I couldn’t get away from that joke if I tried) writing and Constitutional interpretation. As a quick background to the case, Estelle Griswold a woman who ran a Planned Parenthood in Connecticut, intentionally opened a contraceptive clinic in violation of a state law with the hopes of challenging what was previously claimed to be a ‘unenforceable law’. The question posed to the court related whether the Bill of Rights provided a right to privacy between a man and wife, and their doctors. What makes this case so famous is the established ‘right to privacy’ as something enumerated within the Constitution, which paved the way for decisions such as Roe v. Wade and many more. So why would I honor a judge who speaks out against one of my most dearly held beliefs? Its all in the words. In his first sentence dissenting against the 7 member majority, Stewart rebukes the contraceptive law, endorses citizens rights of choice persisting to personal beliefs and religion yet is unwilling to admit that it is not a constitutionally created law that ought to be changed or upheld.

#3 Engel v. Vitale 1962

As the lone dissenter in a case that brought the separation of religion and public schools to the forefront of American politics as it asked the question: “Are voluntary opening prayers in a public school an ‘establishment of religion’ as prohibited by the First Amendment. Of course it is, and that is how all the judges felt, all but one, that is. By pointing to half a dozen ways in which our government has added God to our national songs, currency, monuments and practices have passed through the supposed ‘wall of separation’. This is just another instance where I believe the former Justice to see clear to the issue, and provide what I consider to be a very sharp interpretation.

#2 Katz v. United States 1967

If my enjoyment of the Griswold ruling seemed unnecessarily enthusiastic, then you should know that I go positively giddy when reading the majority opinion penned by Stewart in this 1967 case concerning individual privacy and wiretapping. Charles Katz, was convicted of illegal sports betting by payphone using wiretapped messages recorded by the FBI, which he claimed was a violation of his 4th Amendment protection from searches and seizures. This is a crucial case in today’s world as the 7-1 decision found directly in favor of the extended rights of privacy in a public domain, such as a payphone. This case may also come into play in the near future, as privacy and anonymity through the internet may come into the high courts consideration sooner than later. In his opinion of the Court, Stewart expands a citizens rights of privacy by pointing out that while the 4th Amendment could not be ‘translated into a general constitutional “right to privacy” while still protecting the citizens, not the spaces they inhabit. This understanding has now expanded to include vehicles and other places of confidentiality. This leads us to one of the most talked about cases in history, a case with an amazing story that changed the face of modern law.

#1. Gideon v. Wainwright 1963

Clarence Gideon was serving a 5 year larceny sentence when he bribed a guard to photocopy and mail a handwritten petition to the Supreme Court in hopes of positing a heavy question in front of them that had been settled once before by the high court. Looking to overturn a previous courts decision, the Warren court took up the career criminals case in hopes of answering the pivitol question: does the 6th Amendments right to counsel count as a fundamental entitlement within the Constitution, and does that entitlement force the government to provide counsel should a defendant prove unable to do so? In an unanimous decision (which surprisingly happens about 30% of the time) the court, speaking through Justice Hugo Black, enforced what can only be described as a tight interpretation of our founding documents. They threw out previously held ideas of ‘capital crimes’ and process of being selective in providing representation. This gave every citizen a fair chance with legal representation when their day at court came. Stewart joined his voice with the majority opinion, and we can only assume he reveled in a chance to bring about a new era in Constitutionally enforced protection from undue persecution.

So there we have it, five landmark cases of the Warren Era broken down a bit into plain English with some of the implications of their decisions put forward as well. I hope you’ve learned a little bit along the way. I hope even more that you disagree on some things and look forward to some comments below, sparking debate. I will leave you with this thought; based on what you know now of Stewart and his textualist approach to the Constitution, how do you think he would approach the censorship, copyright infringement and privacy issues that will be on our top jurists minds in the near future ? Or even more current, where would he side on the upcoming marriage equality case ?


I still need some citing to be done, but I did not want to leave this out at the very least

the good folks that keep wikipedia.com running for my go to dates/ names

http://www.law.cornell.edu/ accessed 2/6/13 -2/10/13

O’Brien, David M. Constitutional Law and Politics. New York: W.W. Norton, 1997. Print.

Copyright 2012 by Northwestern University School of Law Printed in U.S.A.

Northwestern University Law Review Vol. 106, No. 2





Lee Epstein, William M. Landes & Richard A. Posner

accessed 2/8/13

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5 Responses to Potter Stewart, A man with a great name, and a great vision

  1. elason13 says:

    I think that Justice Stewart could possibly decide either way on the issue of equal marriage. On the one hand, there is the Equal Protection of the Law Clause. Textually speaking, what else could that mean?? Straight peolple enjoy the freedom, and benefits, of marriage, gay people should then have that equal freedom as well. However, what’s throwing me off is how he decided in the seperation of church and state case. Based off of your summary, it seems like his reasoning for not wanting to take prayer out of school was because the church and the government were already so meshed together as to make this decision pointless. In this way, I believe he was interpreting in what he believed was the intent of the Framers, because it certainly isn’t textualism. So, would he deem equal rights against the intentions of the Framers and dissent as well?

  2. haleyschryver says:

    I don’t think he is really going with the intent of the framers; I think he is making most of his decisions strictly from textualism, but then the one about prayer in school doesn’t make sense to me. Why would he make his decision based things that the government has done such as “in God we trust” on currency and “under God” in our national anthem when none of that has to do with the text of the Constitution? He could be trying to go with the intent of the framers, but most of the stuff about God wasn’t added officially until around the 1950s. I just don’t see what his argument comes from.
    On issues like privacy, I can see why he wouldn’t be in favor of it because it isn’t directly referred to in the Constitution. Then again he might also support it because since we already have some privacy laws, and what the government already has in place seems to matter to him like it did with the case about prayer in school.

  3. I think her could very well make a decision on the gay marriage issue. I would think that he would approach the situation by allowing gay people to have the same benefits such as domestic partnerships but still withholding the rights to the title “marriage” for the church. However, i doubt this would pacify the gay rights activists. Anyway, as far as his ruling on prayer in school i think his point was simply that separation was t protect both parties from taking control over the other and thus corrupting. Not that they cannot acknowledge that the other exists. If that was the case then taken to its logical extent marriage would not be recognized by the government, or the church would not be given the authority to grant it. Either one seems stupid for a variety of reasons

  4. theginja says:


    I like this post … I just wanted to say that.

  5. “So why would I honor a judge who speaks out against one of my most dearly held beliefs?”

    I love your statement there. Often times, people neglect to realize the true role of Supreme Court justices; in class, we jokingly state that we agree with them when their views mirror our own. It is essential to be able to separate your own views–religious, moral, etc.–when determining whether the Justice has done his or her job. A Justice should be liked or disliked based upon how he or she interprets the Constitution.

    On Justice Stewart’s interpretation of the Constitution, I do have a little confusion. In Griswold v. Connecticut, Stewart dissents because the Constitution does not explicitly express an issue with the Connecticut law. He did not find a right to privacy in Griswold. However, in Katz v. United States, Stewart does interpret the right to privacy as a constitutional right. While I know the two cases deal with different amendments, the theme is the same–Do we have a constitutional right to privacy (even in the public domain)? And here, Stewart is inconsistent.

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