The Volokh Conspiracy

Hugh Hewitt writes:

Practical Potter and Even More Thoughts on the Politics of SCOTUS in 2006

The first President Bush was, I think, close friends with Justice Potter Stewart, who rose to SCOTUS after four years as a federal judge, and who, notably, retired at the age of 66. Stewart's opinions were pointed, and usually correct in my view. His job was to get it right, not construct overarching theories. How will Harriet Miers turn out on the SCOTUS? My best guess is a lot like Potter Stewart, in temperment and tone, and in results.

Now I agree that there are many well-regarded and successful Justices who were more pragmatists than theoreticians; in an earlier post, I analogized Harriet Miers to one example, Justice Byron White. And it may well be that a Court that contains a mix of theoreticians and pragmatists will do better than one that's filled entirely with theoretically or ideologically minded judges.

What puzzles me, though, is (1) Hugh Hewitt's seeming endorsement of Justice Potter Stewart's outcomes (rather than just his temperament), plus (2) Hugh's prediction that Harriet Miers will reach results similar to those that Stewart reached. On a fairly liberal Court, Justice Stewart was indeed a moderate conservative, but the emphasis should, I think, be more on the "moderate" than on the "conservative." A few examples on some of the issues that I would have thought Hugh would find important:

1. In Griswold v. Connecticut (1965), Justice Stewart did indeed vote against recognizing a "right of privacy" that would let the Court strike down various restrictions on sexual behavior. But eight years later, in Roe v. Wade (1973), Justice Stewart stated that he was prepared to accept Griswold as a precedent, and to extend it to cover a right to abortion.

2. In the mid-1960s, Justice Stewart took a moderate position on the degree to which the First Amendment protects pornography -- but in Miller v. California (1973), he concluded that such a moderate position was untenable, and voted with Justices Brennan, Marshall, and Douglas to hold that pornography among consenting adults was fully constitutionally protected.

3. In the early 1960s, Justice Stewart did cast the one vote in favor of upholding school prayer. But in the 1970s, Justice Stewart voted with the majority in Lemon v. Kurtzman to hold that religious schools must be discriminatorily excluded from evenhanded school aid programs.

4. As I mentioned, in 1965, Justice Stewart reasoned that adults do not have a constitutional right to get contraceptives. But in Carey v. Population Servs. Int'l (1977), Justice Stewart joined Justices Brennan, Marshall, and Blackmun in striking down a ban on the distribution of contraceptives to under-16-year-olds. (Nor was Justice Stewart's decision based on a theory of parental rights; though the ban restricted parents' ability to provide contraceptives to children, and Justice Powell's concurrence used that as a basis for arguing against the ban's constitutionality, the opinion that Justice Stewart joined did not focus on this argument.)

Now I have no reason to think that Harriet Miers will indeed "turn out" "a lot like Potter Stewart" "in results." But I'm not sure I see why, if Hugh thinks she would so turn out, he thinks that the Stewart analogy cuts in her favor. Is it that (1) I'm mistaken in my views about what results Hugh himself would prefer? That (2) Hugh doesn't really care much about the results, and is supporting Harriet Miers even though she might well reaffirm abortion rights, vote against evenhanded school aid programs, or broadly protect pornography (again, a prediction that I would not make, but that seems consistent with Hugh's prediction that she'd be much like Potter Stewart)? Or that (3) Hugh thinks that Miers will turn out like Potter Stewart on most issues, but not on these issues? Or am I missing something else here?