Swing vote, moderate, pithy and witty writer -- these were the characteristics of Potter Stewart seen by the public.
What was harder to see -- because he was a modest and self-effacing man not given to theorizing in his opinions -- was his shrewd and sophisticated view of the Supreme Court and the way constitutional law is, and should be, made.
In essence, he used a "common law" approach to the great open-ended guarantees of the Constitution -- due process, equal protection, freedom of speech. These guarantees are not self-executing and, according to most scholars and jurists, must be adapted to a modern society. Yet that still leaves the great puzzle of judicial review: when is it appropriate for the Supreme Court to invoke the Constitution in invalidating laws enacted by federal or state legislative bodies?
Justice Stewart believed deeply in history and in precedent. Yet he recognized that neither may have answers to contemporary constitutional issues. He was an advocate of neither strict judicial restraint nor intemperate judicial activism. He was neither a liberal nor a conservative. To him, those labels implied an approach to constitutional decision-making that was wrong: imposition of a rigid set of personal beliefs on the specifics of each case.
For him, the solution to the riddle of judicial review under the great open-ended constitutional guarantees was a "common law" approach in which principles emerged slowly and organically from the facts of each case. Cases should, as a general matter, be decided narrowly -- and broader principles should emerge only as precedents accumulated. In deciding individual cases on the facts, it was crucial to find an appropriate balance between the legitimate competing concerns presented by the controversy. The court, in his view, could not go far wrong if it stayed close to the particular controversy presented and reached a sensible balance between the values in conflict.
For Justice Stewart, this approach stemmed from two fundamental beliefs. First, as a person of the world, who had served in war, practiced law and been an elected official (and whose father had been a prominent Ohio politician), he knew that economic and social reality was far more complex than judicial rules. Because the Supreme Court decides individual cases on the record presented by the parties, it is often ill-equipped to announce broad prescriptions because, necessarily, it does not have access to a broad set of "legislative" facts.
He also believed, however, that the Supreme Court's fundamental role was to be a balance wheel in American society. He knew enough about practical politics not to extol in unrealistic measure the virtues of city councils or state legislatures or even Congress. The court sits to ensure a crucial degree of balance between majority rule and minority rights, between congressional and presidential power, between federal authority and state and local autonomy, between robust public debate under the First Amendment and necessary governmental order.
Is it any surprise then that he was himself a balance wheel on the court? Take the abortion issue. Along with Justice Hugo Black, he dissented from the court's seminal case establishing a right to privacy, Griswold v. Connecticut, because he could find no such right in the Constitution. Yet, once the court had found such a right, he accepted that result and applied it in Roe v. Wade to join the court in holding that the constitutional privacy guarantee encompassed a woman's right to decide whether to terminate her pregnancy. But, in Harris v. McRae, he wrote for the court that, while a right to an abortion existed, there was no right to have the government pay for the procedure -- the constitutional right did not create an entitlement to public funding. Whether or not one agrees with his opinions in these three cases, they are all models of lucidity that reflect a careful balance between past precedent and present realities.
Despite the attention given to the "liberal-conservative" debates about the court, an argument could be made that Justice Stewart's "common law" approach has been a dominant -- perhaps the dominant -- method of constitutional decision- making in the last quarter century.
On the day he died, a friend said to me: "Great judge, good justice." Yes and no. Great judge, great justice -- in the sense of a man with an extremely subtle and well thought out view of judicial review. He was a person of extraordinary intelligence and wisdom who along with a colleague whom he revered, John Marshall Harlan, was the exemplar of an important Supreme Court tradition. Because that tradition cannot be easily summarized, it is easily overlooked. But the Stewart approach will endure.