Mauro on Stewart

Posted in Law and Politics by Mike Sacks on July 19, 2010

Tony Mauro at the National Law Journal has another piece up from his digging through the Potter Stewart papers, this time on the Justice’s friendships with President George H.W. Bush and Professor Larry Tribe, and their thoughts about what could have been.

Stewart died in 1986, so he never saw his friend George make it to the White House in 1989 – but Mauro finds that he did follow his friend’s 1980 Presidential run and VP nomination quite closely:

Stewart clearly had a keen interest in Bush’s electoral fortunes, collecting news clippings about Bush testing the waters for a 1980 run for the presidency, which turned into a campaign for vice president with Ronald Reagan at the top of the ticket. Stewart corresponded with Christopher Phillips, apparently a strategist who was urging Bush to stress his moderate views and not give in to pressure from the right that was fueling Reagan’s success. “My great fear is that even if the views stated in your memorandum are fully understood and completely accepted, the house may be irreparably late,” Stewart wrote. Stewart even shared his views with Powell, who wrote Stewart, “These are views you and I have shared. It may indeed be too late now.”

Indeed, for the Court, it was too late.  Under Reagan, Stewart and Powell’s moderate conservatism–political and jurisprudential–began its decline towards today’s near-extinction.

And from Stewart’s “Tribe” file:

In May 1969, after Nixon appointed Warren Burger as chief justice, Tribe wrote a letter to Stewart mourning the demise of a shared hope: that Stewart would be elevated to the position instead. “I had so hoped things would turn out differently,” Tribe wrote. “For you — and for the country — I am sorry.” Stewart’s reply note did not deny the ambition.

This note from Tribe seems at odds with The Brethren‘s prologue (see pp. 10-13), in which Woodward and Armstrong write that Stewart declined President Nixon’s overtures to elevate Stewart to Chief Justice.  Perhaps Stewart, now known as a significant source for The Brethren, fed Woodward and Armstrong this story for pride’s sake.  Perhaps Tribe did not know about this meeting.  Or perhaps Tribe was lamenting the underlying reasons why Stewart felt compelled to decline the President’s offer – “why”s that may have been lost forever in the fires Tribe told me about at the Kagan hearings and reiterated to Mauro:

Laurence Tribe remembers watching Potter Stewart, the U.S. Supreme Court justice for whom he clerked in 1967, feed his office fireplace around Christmas time.

Stewart was burning some of his Court papers, recalls Tribe, the Harvard law professor and now senior counselor at the Justice Department. “He told me that it was an annual affair.”

What papers did Stewart destroy that year? “I promised him I’d remain forever silent, and it’s a promise I feel bound to keep,” Tribe said.

Read the whole piece over at


Justice Stewart’s Papers are Now Open

Posted in Law and Politics by Mike Sacks on July 13, 2010

Tony Mauro of the National Law Journal is reporting on the opening of Potter Stewart’s papers at Yale:

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.

[…] 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.

Mauro’s initial impression of a lack of juicy behind-the-scenes details is corroborated by what I learned in a brief exchange with Professor Larry Tribe at the Kagan hearings.  Tribe was a Stewart clerk in the 1967-68 term and told me that Stewart burned much of his more sensitive papers.  Learning this dampened my enthusiasm to make a trip to New Haven to go digging through Stewart’s records, but perhaps I may still head up there at the end of the summer.

Readers of F1@1F may know that I’m a big fan of Stewart’s “scrupulously non-ideological” jurisprudence, as Mauro describes it. Indeed, if I were ever to write a biography of a Supreme Court justice during his tenure on the bench, I would look to Stewart.  He is of a dead breed of judicial conservatism that will be due for a resurrection in the next decade or two.

As the public begins to recognize that originalism is not at all a safeguard against–but rather a thin veil masking–results-oriented, unprincipled judging, we will see a return of confidence in judges who need no theory of everything to be good, careful, honest judges.  At least so I hope.  Today’s liberal bloc is often derided for being too pragmatic and moderate, that the left needs ideological liberals in the molds of Douglas, Black, Warren, Brennan, and Marshall.  But I think the answer is in more Stewarts, Harlans, Whites, and O’Connors on the right.  A perfect court, in my mind, would have its Brennan/Marshall’s and Scalia/Thomas’s on the wings, with a broad and heterodox middle taking each case as it came.  That would be a diverse bench.  The question remains, however, whether in the age of movement conservatism there remain any pragmatic right-leaning judges or lawyers for future Republican presidents to appoint.

Perhaps some of Stewart’s papers that survived the fireplace may hold a blueprint for a resurgent pragmatic conservatism on the Court.

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