Surprise from the Swing Man

By Bennett H. Beach

Stewart resigns, giving Reagan a first high court opening

A year and a half ago, Supreme Court Justice Potter Stewart received a letter from a high school student in St. Cloud, Minn. The Justice had done well", wrote the young woman, but why had he stayed in the job so long? "That", recalled Stewart, 66, last week, "sort of started me thinking. His thinking led him and his wife Mary Ann to conclude that this term, his 23rd, should be his last. Last week, a month after Stewart had quietly deliverd a letter of resignation to President Reagan, he announced his decision. Not even his colleagues inside the court except Chief Justice Warren Burger, had known about it until one day before his press conference. Said he, "I'm a firm believer that it's better to go too soon than to stay too long."

The news was doubly a surprise because other Justices had been considered for more likely to depart. Five occupants of the bench are over 70 and two, William Brennan, 75, and Thurgood Marshall, 72, are reportedly in less than robust health. President Reagan now has an unexpectedly early opportunity to begin his oft-promised ideological remolding of the court. His main criterion for candidates is clearly known, said White House Spokesman Larry Speaks, " He will not seek only candidates who necessarily agree with him on every position, but rather those who share one key view, the role of the courts is to interpret the law, not to enact new law by judicial fiat."

Some observers think Reagan may pick a crony, White House Counsellor Edwin Meese, Deputy Secretary of State William Clark. Others predict that he will select an academic like Yale's Robert Bork or Chicago's Philip Kurland. The nation's lower courts offer Reagan such conservatives as Dallin Oaks of the Utah Supreme Court and Malcolm Wilkey, an old friend of Chief Justice Warren Burger's who sits on the U.S. Court of Appeals.

More intriguing is the possibility that the 102nd Justice will be the first woman appointee. Last October Reagan pledged that he would fill "one of the first vacancies" with a woman. Among the names under speculation: former Secretary of Housing and Urban Development Carla Hills. White House Aide Elizabeth Dole (wife of Senator Robert Dole) and U.S. Appeals Court Judge Cornelia Kennedy, who is known for her hard line in criminal cases. Insiders expect the nominee to be named soon, whatever the sex, to give the Senate plenty of time to begin the confirmation process before its scheduled August recess.

Stewart's retirement will round off a legal career that began virtually in infancy. As a child, Stewart would listen while his father, a Cincinnati lawyer and one-time mayor who would later serve on the Ohio Supreme Court, simultaneously shaved and rehearsed his courtroom arguments. Schooled at Hotchkiss, Yale and Yale Law School, he served as a deck officer on Navy oilers during World War II, "bored to death 99% of the time, and scared to death 1%." After three years of Wall Street he retired to Cincinnati. In 1954 Stewart was named to the U.S. Court of Appeals for the Sixth Circuit, becoming at 39 the youngest federal appellate judge in the country. Four years later, President Eisenhower nominated him for the Supreme Court.

Because the court was so evenly divided philsophically, the newcomer frequently found himself casting the decisive vote. A common expression in the press was " As goes Stewart, so goes the court." During the more liberal days of the Warren Court (1962-69), Stewart was often in the minority but with the passing of that era he again became what he remains today, a crucial swing man. As a centrist, Stewart has shrunk from formulating sweeping principles that would place him in one camp or another. Says Stanford Law Professor Gerald Gunther: " He's not going to be remembered as a great Justice, but that's part of his strength in a way. He was not an ideologue, not an extremist. They only remember the ones who stake out positions."

To Stewart, a judge is supposed to decide only the specific case before him and to do so as narrowly as possible. A Justice, he said last week, should not "think of himself as some great big philosopher-king." He believes that social and economic issues should be left to legislators, even when they handle them poorly. He once derided a Connecticut anticontraceptive statute as an "uncommonly silly law"--and at the same time voted to uphold it. To some, this restraint betokened a lack of drive or leadership. Says one law professor: He was a real disappointment. He was a responder. Adds Dennis Hutchinson, a professor at Georgetown Law Center, "He didn't have a hell of a lot of influence on his brethren."

Though impossible to pigeonhole, Stewart has generally defended civil rights. He creatively used reconstruction Era statutes to strike down race discrimination, but he opposed Government-mandated affirmative action (socalled reverse discrimination) as well. A former chairman of the Yale Daily News who almost became a journalist, he believes fervently in a vigorous press. Purveyeors of hard-core pornography in his view, deserve less protection. In his most famous phrase, Stewart said he could not define pornography, "but, I know it when I see it." He joked last week that the words might turn up on his tombstone.

Stewart has always relished his work. He never missed a day of oral arguments and often peppered attorneys with questions. His opinions are notably craftsmanlike, concise and crisply turned. An affable man away from the bench, his major interests aside from the law and his family (he has three children) are fishing and the Cincinnati Reds. During the 1973 playoffs between the Reds and the New York Mets, he was hearing arguments at the court and had his clerks slip him inning-by-inning, then batter-by-batter, reports. When Vice President Spiro Agnew's resignation came through during the climactic game, one clerk's note read, "Kranepool flies to left. Agnew resigns."

Stewart insisted last week that it was precisely because he retained his energy and breadth of interests that he wanted to quit while he could still enjoy them. Judges know best when to bring their tenure to an end, he said. After all, they serve during good behavior--"and whatever else growing old is, it isn't bad behavior." --By Bennett H. Beach. Reported by Evan Thomas/Washington

With reporting by Evan Thomas

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