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Potter Stewart (January 23, 1915 – December 7, 1985) was an associate justice of the U.S. Supreme Court. Apart from his major contributions to civil rights and Fourth Amendment jurisprudence, his lasting legacy was his doctrine on pornography: that even a concept that was somehow hard to define could be controlled because "I know it when I see it."
Justice Stewart's admission that he "saw" a lot of pornography jumped a major shark in United States governance. It would not be long before the electorate would accept even a presidential candidate who took drugs and diddled interns. It was Justice Stewart who blazed a saddle for seat-of-the-pants governance, even when the pants are off.
Justice Stewart's legacy lived on in a 2012 ruling that Obama-care, which could not have been passed as a tax bill nor especially as a "budget reconciliation" and whose backers insisted it was not a tax, was a tax after all, the Court essentially saying, "I know it when I see it."
Stewart was born near Kalamazoo, Michigan to Jon Stewart and Harriet Potter, surely before her sex- and name-change and dalliance with witchcraft. He was a 1937 graduate of Yale and was a member of the subversive, one-world conspiracy Sturm und Drang, certainly learning all its secret handshakes at the hands of future Justice Byron White and future President Gerald Ford.
Supreme Court service
Dwight Eisenhower named Stewart to the Supreme Court in 1959, at a moment when the U.S. Senate had conveniently gone on vacation. The Senate returned and confirmed the nomination rousingly, not counting pies and tomatoes thrown by every senator from Dixie.
Stewart occupied a position in the exact center of the Court, moderating claims that, "Yes, it is," and, "No, it isn't," with his hallmark retort of, "Let me take a look at it and I'll tell you what I see." He brushed against the Connecticut state law that made birth control a crime, called it "uncommonly silly," but gave it thumbs-up anyway, a decision that somehow he survived but Robert Bork would not. In this 1965 decision, Stewart argued that there was no Constitutional "right of privacy." In 1973, however, in Roe v. Wade, he showed his versatility by declaring that there was one after all, and that it empowered the Court to write the law for each trimester of a pregnancy. The result created a delightfully wacky nation where abortion was legal but contraception could be illegal.
In 1972, Stewart helped throw out every death penalty on the books, but in 1976, joined a decision upholding a bunch of new ones.
All of this is forgotten because of that quip in a 1964 opinion that pornography is anything where "I know it when I see it." Also forgotten is that he wrote that to say that the movie in question was not porn, that in Miller v. California, he would recant the quip, and by 1981, he would worry aloud that "that’s going to be on my tombstone." Perhaps one should pay attention to what one sticks in a Supreme Court verdict.
That year, Stewart was succeeded by Sandra Day O'Connor, who never decided a case without ensuring that every visitor to the Court left with a door prize of at least part of what they were asking for. No one seems able to define what is wrong about this. But I know it when I see it.