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Erik Visits an American Grave, Part 107

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This is the grave of Potter Stewart.

Born in Jackson, Michigan in 1915, Stewart was a member of a powerful Ohio Republican family. His father was mayor of Cincinnati and then served on the Ohio Supreme Court. Stewart went to Yale and graduated in 1937. He then went to Yale Law School, finished that degree in 1941. After a stint in the Naval Reserve during World War II, he went into private practice back in Cincinnati, but he was ambitious like his father. He was elected to the Cincinnati city council but the Eisenhower administration tapped him for a slot on the Sixth Circuit in 1954. He didn’t last long there either, because Eisenhower named him to the Supreme Court in 1958, at the age of 43. He won confirmation 70-17, with all the no votes coming from Dixiecrats.

I am not a legal historian nor expert like some readers, so let me summarize Stewart the best I can and others can make revisions in comments. Stewart belived himself a centrist but his jurisprudence was quite conservative in his early years on the Court. He dissented in Griswold v. Connecticut because he rejected the right to privacy as a constitutional element. He did the same in Miranda v. Arizona. But when Warren Burger replaced Earl Warren, Stewart did become the swing vote in many cases. He voted with the majority in Furman v. Georgia, which invalidated all state death penalty laws. He also moved to the left on the right to privacy, rejecting his previous ruling in Griswold to go with the liberals in Roe v. Wade. He was also personally disgusted by the Vietnam War and wanted to use the Court’s power to act against it and was part of the majority in ruling that most of the Pentagon Papers should be released. Perhaps most famously, he came up with the famed phrase about pornography, “I know it when I see it, and the motion picture involved in this case is not that.” Given that it was Louis Malle’s The Lovers, he was right. He opposed discrimination based on race but also opposed affirmative action programs. He was a critical player in many other cases over his long tenure; have at it in comments.

Stewart retired from the Court in 1981 and Reagan nominated Sandra Day O’Connor to replace him. He was only 66 and hoped for a long, healthy retirement but he had a stroke and died in 1985.

Potter Stewart is buried on the confiscated lands of the traitor Lee, Arlington National Cemetery, Arlington, Virginia.

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  • Karen

    No mention of his most famous quote — “I know it when I see it?”

    • CrunchyFrog

      Don’t like reading through to the end? TL;DR?

      • Karen

        Ugh, Duh. Now I see that part, although I swear it wasn’t in the piece at 6:10 a.m. Central Time when I posted that comment. Then again, I posted at 6:10 a.m.

  • Abigail Nussbaum

    “A good lawyer who did his best.” Boy, someone was a little afraid of the judgment of history.

    • BiloSagdiyev

      I liked that, too. Kind of a reverse Royal Tenenbaum.
      It made me think of a tombstone that said instead, “I’m trying! I’m trying! What do you people WANT from me?!”

    • Hummus5989

      Bizarrely afraid, given his record. He really wasn’t a judge with anything to be ashamed of: generally good record on rights, especially civil rights, good for access to the courts, etc. He was a bit of an odd duck jurisprudentially, but he was definitely the best of the endless succession of “swing judges” both in terms of ability and results.

  • Bruce Vail

    I wish you would stop referring to Arlington National Cemetery as the confiscated lands of the traitor Lee.

    The plantation was sold at public auction during the Civil War and purchased by the US government. Later, the son of Robert E. Lee sued for compensation, and won.

    From the NPS website: “After Robert E. Lee and his wife died in the early 1870s, their oldest son, Custis Lee, brought suit against the U.S. Government in attempt to regain title to the estate. In 1882, the U.S. Supreme Court decided in Custis Lee’s favor. He was compensated $150,000 in exchange for the property, thereby ending any legal claim the Lees had on Arlington.”

    I don’t even think that Lee ever technically owned the property, It was owned and occupied by Lee’s father in law until 1857. He died that year and left the plantation to his daughter, not to Lee.

    • BiloSagdiyev

      “Potter Stewart is buried on the site of a former slave labor camp, previously owned and operated by traitor Robert E. Lee’s family.”.

      • Bruce Vail

        Good. And let’s re-name “Arlington House, the Robert E. Lee Memorial” (https://www.nps.gov/arho/index.html).

        I’m on board with the “Custis-Lee Slave Labor Camp Memorial”.

      • reattmore

        Potter Stewart is buried on the site of a former slave labor camp, previously owned and operated by traitor George Washington’s family.

        • Cervantes

          Actually, no. The land was acquired by a grandson of Martha Washington, but his grandfather was not George but her second husband. His daughter went on to marry Lee, but there was no blood relationship to George Washington.

          Yes, George did own slaves and he was a traitor as far as His Majesty George III was concerned.

          • BiloSagdiyev

            I’m confused. Wasn’t Martha’s second husband George?

            • Cervantes

              Oh sorry, you’re right, but in any case the kids were not George’s. He was a father figure to them, however.

          • reattmore

            George Washington Parke Custis, Lee’s father-in-law, was adopted by Washington after his blood father, Washington’s stepchild, died at Yorktown

        • Hondo

          Treason against whom?

    • Denverite

      The plantation was sold at public auction during the Civil War and purchased by the US government. Later, the son of Robert E. Lee sued for compensation, and won.

      This is overstating things. It was sold at a tax sale over a trivial amount (around $100), Mary Lee sent an agent to settle the tax bill, and the agent was turned away because the US government had decided that it wanted the site for a cemetery. It was confiscated. Lee’s heir was subsequently reimbursed, but that doesn’t change the fact that it was confiscated in the first place.

      Your point that it was Mary Lee’s property and not Robert’s is fair enough.

    • Joe Paulson

      According to the informational pamphlet on the website, the Lees left and the feds occupied the property. The “confiscated” part doesn’t change because later it was determined that it was a taking that warranted compensation. Third Amendment implications?

      http://www.arlingtoncemetery.mil/Portals/0/Web%20Final%20PDF%20of%20Brochure%20March%202015.pdf

      The part about it being his wife’s property holds — it seems appropriate to give her agency.

      • Bruce Vail

        I’ll defer to you on the precise legal definition of ‘confiscate’ in this context.

        The commonplace understanding of the word, and many dictionary definitions as well, suggest it means that property is seized as punishment, without compensation. I think that is the way that Erik means it.

        • Joe Paulson

          I’m not trying to being legally precise.

          The first definition I found is “take or seize (someone’s property) with authority.” For instance, “the guards confiscated his camera.” It very well might be to seized as punishment. But, that is far from necessary and it is regularly used without that part.

          Also, the core commonly understood part is taking the property. The fact that maybe, eventually, you will get some compensation (here minimal according to a reply) doesn’t get you it back. It still has been confiscated.

          • Bruce Vail

            Okay, Joe, I take your point.

            It’s sort of interesting that the government used part of estate at one point for Freedman’s housing. It was supposed be a village where freed slaves could find temporary housing and take vocational training in preparation for their new lives as free workers

            • BiloSagdiyev

              The Morning Chronicle is shrill.

  • Joe Paulson

    Stewart argued that the Constitution protected privacy in various ways but there was not a general “right to privacy” that warranted that result. He later, based on precedent and substantive due process generally (Douglas’ approach was arguably more narrow), was a vote for Roe v. Wade.

    After he retired, he wrote an article (“The Road to Mapp v. Ohio and beyond”) supporting the exclusionary rule. He also was fairly press friendly, repeatedly supporting expansive rights for them (including a limited immunity to testimony).

    The obscenity quip is famous but a bit overblown. First, yes, that movie surely isn’t obscene. Two, he later provided some clarification on what his test would cover. OTOH, apparently he only “saw it” once on the Court after that. The fact obscenity is subjective to some extent is true.

    Overall, that tagline on this grave was fitting.

    • I think his life dates are on the other side and I forgot to take a picture of it.

  • Bruce Vail

    So, did Eisenhower name the 43-year-old Stewart to the Court because he wanted a conservative Republican to hold the seat for 20 or 30 years?

    • Denverite

      This is the same Eisenhower that appointed William Brennan and Earl Warren, right?

      • Joe Paulson

        Political appointments that he later deemed mistakes. Harlan and Stewart seem more like the sort of ideological sorts he favored.

      • Hummus5989

        Bingo. Eisenhower was not himself a conservative and had nothing but contempt for the conservative wing of his party

        • CP

          More than that, in fact, he ran as a Republican specifically because he wanted to stomp hard on the conservative wing of the party rather than leave the party in their hands. (Although that was mostly for foreign policy reasons).

  • John F

    “Stewart believed himself a centrist”

    Almost everyone believes himself/herself to be a centrist or moderate….

    • BiloSagdiyev

      And objective and a great lover and a very good driver, too.

      • Bill Altreuter

        With a terrific sense of humor

        • Lurking Canadian

          And, if they are at all involved in computing, the only people on Earth who can code worth a damn.

        • Hondo

          And stunning good looks.

    • Manny Kant

      Other people also believe Stewart to have been a centrist!

  • BiloSagdiyev

    “After a stint in the Naval Reserve during World War II…”
    Ooh! A chance for some military history! Since it was the Naval Reserve, was this some kind of cushy spot for the son of a powerful family? It was World War II, so I don’t think many reservists got to stay in reserve.
    I checked. He served on oil tankers in the Atlantic and in the Mediterranean. That’s nothing to sneeze at. (Or light a match near.)

    • Rob in CT

      My father was in the British merchant marine in WWII. His father, a seafarer himself (pilot) told him in no uncertain terms never to sign on with a tanker. They apparently had comparatively comfortable quarters and some other perks, but there’s the whole burning to death thing.

    • Lurking Canadian

      As I understand it, most of the people serving in the USN during WWII were officially “in he reserve”. That way, they could go back to being civilians after the war and they would not displace any “real” Navy personnel from their positions.

    • chrisM

      Reserves have changed meaning at least three times since 1940. During the war, most every officer was Reserves unless you were one of the select few in the regular Army/Navy (for Officers, rank didn’t mean a thing unless you had that [Service Academy] ring). Post WW2->post Vietnam, reserves were a generally cushy job where powerful sons went to avoid going to Vietnam. Post Vietnam, reserves can expect to get called up on a regular basis and it is no longer a place to hide out.

      Three completely different cultural contexts sharing the same name.

  • Bootsie

    I also want my tombstone to say “look, he did his best, okay?”

  • Unemployed_Northeastern

    “This is the grave of Potter Stewart”

    You knew it when you saw it.

  • mch2

    Brothers can be very different from one another, but I have an anecdote about Justice Potter Stewart’s brother, Zeph Stewart, a distinguished Classics professor at Harvard. In about 1978 he was charged with showing me around campus when I was being interviewed for a collapsable chair position (I didn’t get it). I had a wonderful time with him. He was simply a lovely man. The highlight of our tour (for him, I think, and certainly for me), he showed me various antique clocks and introduced me to the Harvard keeper of the clocks (or whatever his title was, but I think that was it), obviously someone Zeph Stewart was on the easiest and friendliest of terms with. The three of us chatted for maybe 10 minutes. I should add that, at the time, I had no idea that his brother was Potter Stewart. I didn’t lay eyes on Zeph Stewart until maybe 15 years later, we found ourselves seated next to one another as we flew back to Logan after a professional meeting. I (re)-introduced myself to him, and the light went on — her remembered me. But most of all he was delighted that I remembered fondly our tour of the clocks and the meeting with their keeper, about whom Prof. Stewart filled me in a bit. When starting this comment, I found myself wondering if his first name was (fully) Zephaniah. I haven’t found out, but on checking I came upon this story about him, the first on my google feed:

    http://archive.boston.com/news/education/higher/articles/2007/12/12/zeph_stewart_taught_lessons_of_classics_humanity_at_harvard/

    I’ve been researching faculty from the late 19th and early 20th centuries at my New England institution (a whole class of Ohioans were transplanted New Englanders in Potter Stewart’s days there). (Sorry, Eric, but a lot of the research is “genealogical.” You can learn a lot that way.) After a while I get very tired of their (usually) Congregational tweediness and sense of propriety — all those ministers and then ministers’ sons as professors. But I also can’t help but admire a great deal in them: their moral earnestness (including opposition to slavery, support of labor support of women’s education and women’s rights), their devotion to their students. Anyway, I suspect that Potter Stewart came out of that Republican sub-class.

  • EliHawk

    No mention that he was the primary source for everyone’s favorite account of how terrible Warren Burger is, “The Brethren?”

    I always loved how at Arlington Blackmun, Marshall, Stewart and Brennan are all off a little bit away from Burger. It’s poetic justice given how much they all hated him. (Similarly, so is Douglas off in his own little world like 40 ft or so from all of them.)

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