Saturday, January 19, 2013

i know it when i see it

Pop quiz time.

Guess who is in the photograph.  Not the skinny kid on the left with that cheesy Nancy Reagan stare.  But the urbane chap on the right.

If any of you know him by his face, I would be shocked.  Even though he was, at one point, one of the most powerful men in the federal government.  Certainly, a member of the most elite club in Washington.

Please meet Potter Stewart.  Associate Justice of the United States Supreme Court for almost twenty-three of America's most turbulent judicial years.  From the late 50s through the early 80s.

He was my favorite justice on the court during those years.  Starting in the summer of 1962.  Between the seventh and eighth grade.

I was a political fan in those days.  My friend Chad could recite Roger Maris's batting average.  I could recite the names of the members of Congress and their district numbers.  My mother thought I was a baby step away from playing Rainman.

The Supreme Court names were a snap.  Nine men -- they were all men until President Reagan appointed Sandra Day O'Connor to the court, to fill Potter Stewart's seat.  With memorable names.

Black.  Frankfurter.  Douglas.  Clark.  Harlan.  Brennan.  Whittaker.  Stewart.  They could have been the starting lineup for the Cubs.

During the summer of 1962, the Supreme Court issued its decision in Engel v. Vitale -- one of the school prayer cases from the 1960s.  Stewart was the sole dissent from the court's decision.  But his opinion seemed far more persuasive and reasonable to me than the majority's.

Back then, I suffered from the same type of myopia that clouds the vision of most Americans when they look at the Supreme Court.  Most Americans see the court just as another political body imposing its policy will on the nation.  Rather than as a body of judges interpreting the law and the Constitution without regard to their personal political agenda.

But there was something more.  Something about his reasoning.  The Warren Court was slipping into high gear in its "we make up the law as we go along" judicial philosophy.

That was not Stewart's philosophy.  He thought the majority was ignoring the intent of the Founder's in its interpretation of the Establishment Clause.  And, in the process, the majority was usurping the prerogatives of Congress and the state legislatures.

He applied that philosophy in
Griswold v. Connecticut -- where the Supreme Court found a Connecticut statute barring the use of contraceptives in violation of a "Right to Privacy."  Stewart could not go along with the court.  Even though he thought the statute was an "uncommonly silly law," he could not find a "Right of Privacy" in the Constitution.  For good reason.  It is not there.

He was one of the earliest proponents of "originalism" -- even though the philosophy would not take on that name until the late 1980s.

His moderate pragmatism even caught the eye of the editors of GQ who endorsed him for the presidency in 1968.  I would have worked for him -- abandoning the candidate for whom I was working at the time.

He was wise enough to avoid that swamp.  He avoided another when Richard Nixon considered nominating Stewart as chief justice in 1969.  Instead, he stayed on the court developing a judicial philosophy that some of his successors should review. 

The photograph?  It was taken the summer of 1970.  My college pal John and I, both of us on our way to our political science and history degrees, flew to Washington for an existential pilgrimage. 

We met senators and congressmen.  And made the usual rounds of monuments and museums.

Before we left, I had arranged an appointment to meet my judicial hero.  He was just returning from his vacation in New Hampshire and promised us some time during our week there.

I had already decided that I was going to be a lawyer by that point.  If I had not, this visit could have been the deciding point.

The public area of the Supreme Court building has the feel of a temple.  But beyond the guards, the chambers of each of the justices has the feel of a combination of priesthood and Renaissance princedom.

The man in the photograph looks as if he could be the president of a midwestern bank.  And that is exactly how he came across.  No pretension.  No paternalism.

He talked to us as if we were intelligent adults.  Perhaps his neighbors.  Explaining the court's process -- peppered with several fascinating anecdotes.  For instance, Felix Frankfurter, one of the most political men appointed to the court, believed so strongly in the separation of powers that he gave up voting when he was appointed to the court.

We exchanged letters over the years.  The last one is a letter describing the process to apply as a clerk at the court.

I never followed up on it.  In 1979 I graduated from law school and set up a private practice.  Less than two years later, he resigned from the court.  And died four years after that.

I find it hard to believe he has been gone for thirty years.  But the judicial philosophy he promoted still battles on.  As long as it does, there will be a refuge for those who respect both the Constitution and the democratic decision-making of the people and their elected officials.

Justice Stewart, you were correct.  We do know it when we see it.


patzman said...

Very interesting. Sad what the court will probably look like in 2016 or 2020.

Stan Wolf said...

Nice bit of personal history - glad you shared it. Glad there are/were young people who care about meaningful institutions, and not just vacuous celebrity...

John Calypso said...

"He was my favorite justice on the court during those years. Starting in the summer of 1962. Between the seventh and eighth grade."

Your favorite justice in the seventh grade! Hombre you are a funny guy.

Steve Cotton said...

I suspect Stewart would not recognize it.

Steve Cotton said...

I was a bit obsessed with politics at that age.

Steve Cotton said...

What can I say?