Down the Ballot

Friday, January 30, 2015

You'll know it

When you see it.

Justice Potter Stewart
Some folks know instantly what they'll be remembered for after they leave us. Former Supreme Court Justice Potter Stewart knew exactly what he'd be remembered for, and he wasn't all the time thrilled about it. This adventure in 1985 allows us to honor and remember Stewart. He passed away in December of that year.

Anyone who has ever studied the First Amendment has probably read the phrase in conjunction with the decision rendered in Jacobellis v. Ohio, 378 U.S. 184 (1964). Jacobellis was a theater manager and was convicted of airing the french film The Lovers at his theater. The state claimed the film was obscene. Of course, Jacobellis took the state to court. He won the case and Stewart became, shall we say, infamous for his concurrence. This statement is famous that it even has its own Wikipedia page.

Here is the full statement

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], 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.


Stewart was born into a political family. His father was a successful politico from Cincinnati, Ohio. He served as mayor for a time and was state supreme court justice. Stewart himself would even one day serve on the city council of Cincinnati.

His son Potter Stewart Jr. recently retired from active practice in law just this last year. He had another son David and a daughter, Harriett. His wife passed away in 2013.   

He was nominated to serve on the U.S. Supreme Court by President Dwight Eisenhower and retired early during President Reagan's first term. His successor was a rather big deal. It was none other than Sandra Day O'Conner. The first woman to be appointed to the court. She retired in 2006.

Potter Stewart may be most remembered for the quote above, but he has another one which I can recall, even it if is not as catchy as 'I know it'. 

Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime.

Like many jurors on the court, I think Potter evolved over time in his decision making. His biggest and clearest change was in privacy law. He went from not believing you could find a 'right to privacy' in the constitution (Griswold v. Connecticut) to using your right to privacy to advance women's right to an abortion (Roe v. Wade).

 Next time you think you know it, be sure you see it for Justice Stewart.
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