The Protection of the Individual and the Free Exchange of Ideas: Justice Potter Stewart's Role in First and Fourth Amendment Cases
![handle is hein.journals/ucinlr54 and id is 99 raw text is: THE PROTECTION OF THE INDIVIDUAL
AND THE FREE EXCHANGE OF IDEAS:
JUSTICE POTTER STEWART'S ROLE IN
FIRST AND FOURTH AMENDMENT CASES
Ethel S. White*
I. INTRODUCTION
Justice Potter Stewart is remembered as a faithful defender of
the first amendment, and much of what has been written about
him has concentrated on this area.' Although far less has been
written about his work on the fourth amendment, he may have
believed that his fourth amendment opinions constituted his major
contribution to the Court's work.2
Stewart's fourth amendment opinions, like his first amendment
opinions, demonstrated a marked sympathy for the rights of the
individual. This orientation was tempered by his views on judicial
behavior, however. He recognized that justices, like other human
beings, carry environmental and emotional baggage to their work.
He believed, however, that a justice must consciously curb his
political or moral or religious or social or economic beliefs and
decide cases under the law and the Constitution as they are
written, not as he would write them himself, or not under laws
or the Constitution under which he or she wishes it were written.3
Stewart was not a philosopher; fairness was his creed, and it was
perhaps his refusal to be constrained by any ideological scheme
that caused some observers to label him swing man.'4 Fairness
* A.B. 1958 Vassar College; M.A. 1983 University of Louisville; Associate Editor,
The Public Papers of Governor John Y. Brown, Jr., published by the Kentucky Historical
Society.
1. See, e.g., Powell, Forward: Mr. Justice Stewart, 7 HOFSTRA L. REV. 559, 560
(1979).
2. Interview with Potter Stewart (Feb. 9, 1982)[hereinafter cited as Interview].
The interview was held while he was serving as Senior Judge of the United States
Court of Appeals for the Sixth Circuit, following his retirement from the United States
Supreme Court. Justice Stewart attributed to the luck of the draw his opportunity
to influence fourth amendment law, presumably because he wrote more fourth
amendment opinions in his 24 years on the Court than did any other justice during
that time. Id. But some commentators suggest that the selection by two chief justices
of Stewart to author so many fourth amendment opinions was not entirely accidental.
See, e.g., Lewis, Justice Stewart and Fourth Amendment Probable Cause: Swing Voter or
Participant in a New Majority?, 22 Loy. L. REV. 713, 740 (1976).
3. Interview, supra note 2.
4. See, e.g., L. LEVY, AGAINST THE LAW: THE NIXON COURT AND CRIMINAL JUSTICE](ViewImageLocal?handle=hein.journals/ucinlr54&div=12&collection=&method=preview&ext=.png&size=3)
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