Stewart, Potter

Potter Stewart (1915–1985), associate justice of the Supreme Court from 1958 to1981, is frequently remembered for his famous nondefinition of obscenity: “I know it when I see it.” Stewart began his service on the Court during an era when many justices still wrote their own opinions, and his pithy prose resulted in a number of famous quotations, such as the one on pornography. Although Stewart was a nominal Republican at the time his judicial career began, overall he was a moderate justice, splitting his votes evenly between his more conservative and liberal colleagues. His record in First Amendment cases was mixed, but he was more often supportive of individual liberty than not in cases involving speech and religion. For example, in the 1,550 civil liberties cases in which he participated, he voted with the liberals 51 percent of the time. Yet in 274 First Amendment cases, a subset of civil liberties, he voted in the liberal direction 64 percent of the time, generally supporting the individual over the state.

Stewart was born in Jackson, Michigan. He grew up in an upper-class family in Cincinnati, where his father served as mayor and later was a justice of the Ohio Supreme Court. After attending Yale University and Yale Law School, Stewart worked on Wall Street and served as a navy officer during World War II. After the war he returned to Cincinnati to work in private practice. He was elected to the city council and served as vice mayor, though he failed to win reelection to the city council after he accused two other city council members and a city planning director of being communists. Many of the charges were baseless, and Stewart’s vocal accusations cost him his seat.

In 1954 President Dwight D. Eisenhower appointed Stewart to the Sixth Circuit Court of Appeals. Four years later, Eisenhower tapped him again for a recess appointment to the Supreme Court. Despite opposition from some southern senators who feared that he would support racial integration, Stewart, who had already been serving as a justice for nearly a year, was confirmed, 70-17, by the Senate. At age forty-three, he was one of the youngest people ever to serve on the nation’s highest court.

At the time of Stewart’s confirmation, the Court had been struggling for decades to develop a coherent definition [Page 1024] of and a framework for First Amendment cases involving obscenity and pornography. In their attempts to balance freedom of speech and expression against the state’s ability to protect the health, safety, welfare, and morals of the people through their inherent police power, the justices ultimately determined that they would have to examine pornography issues on a case-by-case basis. The Court articulated this ad hoc approach in Jacobellis v. Ohio (1964), which involved the prosecution of a movie operator, Nico Jacobellis, for showing The Lovers, a film that the state said was obscene. Stewart’s separate opinion in Jacobellis reflected the frustration of many justices in deciding pornography cases. Stewart concluded that criminal obscenity laws were permissible only when applied to “hard-core pornography.” He continued, “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.”

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