Today in Supreme Court History: January 23, 1915

1/23/1915: Justice Potter Stewart born.

Justice Potter Stewart

Comments

[JoeFromtheBronx]

Stewart was a median justice with certain strong beliefs, including about press freedom. His famous quip about obscenity reflected that he wasn't an absolutist but fairly close on the question.

The film in question (The Lovers) was clearly not obscene. Two dissenters significantly relied on the alleged pandering used in advertising. The other dissenter (Harlan) would provide states a broad range of discretion to go their own way on various issues.

Stewart joked that his famous quip might be on his tombstone. Nonetheless, he did later try to define it. See, his dissenting opinion in Ginzburg v. U.S.

("In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General's brief, of the kind of thing to which I have reference.")

Stewart was appointed a federal judge at a young age. He also retired fairly young, opening up a slot for Justice O'Connor.

He died around five years later. And, no, that wasn't on his grave.

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https://www.findagrave.com/memorial/2291/potter-stewart

https://time.com/archive/6697419/law-surprise-from-the-swing-man/

[The Margrave of Azilia]

Technically, Stewart said obscenity = hard core pornography, and that he knew hard-core pornography when he saw it.

Limiting obscenity to hard-core pornography is a more liberal position than American law had previously taken, under any reasonable definition of hard-core pornography.

Of course, Stewart is not regarded by legal experts as part of the Warren Court's liberal wing. Wikipedia calls him a "centrist swing vote on the Burger Court."

I checked his actual tombstone. On one side it says:

"POTTER STEWART
LT. (JG) U.S. NAVY
JAN. 23, 1915 — DEC. 7, 1985
DEARLY LOVED AND LOVING
HUSBAND, FATHER AND GRANDFATHER"

https://www.findagrave.com/memorial/2291/potter-stewart

On the other side it says:

"POTTER STEWART

"ASSOCIATE JUSTICE
UNITED STATES SUPREME COURT
1958-1981
A GOOD LAWYER WHO DID HIS BEST."

https://images.findagrave.com/photos/2025/188/2291_673c483c-f6cc-4fd1-bb06-9fc585b9a1a1.jpeg