Last modified on June 3, 2021, at 00:31

Potter Stewart

Potter Stewart
Former Associate Justice of the U.S. Supreme Court
From: October 14, 1958 – July 3, 1981
Nominator Dwight Eisenhower
Predecessor Harold Hitz Burton
Successor Sandra Day O'Connor
Party Republican
Religion Episcopalian
Military Service
Allegiance United States
Service/branch United States Navy

Potter Stewart (1915–1985) was appointed at a relatively young age to become an Associate Justice of the U.S. Supreme Court by President Dwight Eisenhower in 1958, and later retired from the Court at a relatively young age in 1981. Prior to becoming a Supreme Court justice, he had been a member of the America First Committee.


Justice Stewart was conservative on some issues, disagreeing with the Warren Court in these landmark cases:

Justice Stewart wrote the 5-4 decision for the Court in Harris v. McRae (1980), rejecting a claim that there is a constitutional right to taxpayer-funded abortion.

Justice Stewart opposed incorporation doctrine, which has incrementally applied nearly all of the Bill of Rights against the states by incorporating them into the Fourteenth Amendment:

"The architect of the contemporary 'incorporation' approach to the Fourteenth Amendment is, of course, MR. JUSTICE BLACK. See Adamson v. California, 332 U.S. 46, 68 (dissenting opinion). 'Incorporation' has become so Pavlovian that my Brother BLACK barely mentions the Fourteenth Amendment in the course of an 11-page opinion dealing with the procedural rule the State of Florida has adopted for cases tried in Florida courts under Florida's criminal laws."[1]

Justice Stewart was the first to articulate the pro-private-property concept of a "judicial taking," without using the precise phrase:[2]

There can be little doubt about the impact of that change upon Mrs. Hughes: The beach she had every reason to regard as hers was declared by the state court to be in the public domain. Of course the court did not conceive of this action as a taking. As is so often the case when a State exercises its power to make law, or to regulate, or to pursue a public project, pre-existing property interests were impaired here without any calculated decision to deprive anyone of what he once owned. But the Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does. Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property -- without paying for the privilege of doing so. Because the Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate, I join in reversing the judgment.

Justice Stewart wrote a conservative defense of broad patentability in Parker v. Flook, joined by Chief Justice Warren Burger and Justice William Rehnquist: "The issue here is whether a claimed process loses its status of subject-matter patentability simply because one step in the process would not be patentable subject matter if considered in isolation. The Court of Customs and Patent Appeals held that the process is patentable subject matter, Benson being inapplicable since '[the] present claims do not preempt the formula or algorithm contained therein, because solution of the algorithm, per se, would not infringe the claims.'"[3]

Being a non-interventionist, he sought to rule against the constitutionality of the Vietnam War.

Justice Stewart is best known for defining pornography as "I know it when I see it," but then he held in favor of the pornographers in that case. He also ruled against the death penalty and ruled for abortion in Roe v. Wade.


  • "I think that the Court's task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation," a phrase nowhere to be found in the Constitution." - Dissent in Engel v. Vitale


  1. Williams v. Florida, 399 U.S. 78, 144 (1970) (Stewart, J., dissenting and concurring).
  2. Hughes v. Washington, 389 U.S. 290, 297-98 (1967) (Stewart, J., concurring)
  3. quoting In re Flook, 559 F.2d 21, 23.