The late Supreme Court Justice Potter Stewart was probably best known for two things: his classic "I know it when I see it" non-definition of hard-core pornography in Jacobellis v. Ohio in 1964; and his retirement in 1981, which cleared the path for President Ronald Reagan to appoint the first woman, Sandra Day O'Connor, to the Court.
More can be learned about both events in Stewart's papers, which just became available at Yale University's Sterling Memorial Library. Stewart died in 1985 at age 70, but he stipulated that his papers would not be made public until the retirement of all justices with whom he served. Justice John Paul Stevens was the last justice in that category, so his departure was the trigger for the release of Stewart's papers, at long last.
In his day, Stewart was a moderate, swing vote, usually scrupulously non-ideological. From an initial scan of his case and correspondence files, it does not appear, however, that scholars will learn much about how his brethren won over his vote. The case files generally contain just successive drafts of opinions, with little else. Sometimes his handwritten drafts, written in pencil on yellow legal pads, are included, but sometimes not. In Jacobellis, for example, the famous "I know it ..." phrase appears in the first draft, which was typewritten, and did not change during successive drafts.
His correspondence with other justices is rarely about cases, but is more of a fond exchange of pleasantries. One note from O'Connor, undated but clearly after she succeeded him, states, "Potter, we miss you at lunch. How about joining us often?" O'Connor's late husband John, in a note from March 1982, thanked Stewart profusely for smoothing their path into the Chevy Chase Club at resident guest rates.
Check back here later, and at nlj.com and in the Supreme Court Insider newsletter for more from the Potter Stewart papers.
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