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Because the court was so evenly divided philsophically, the newcomer frequently found himself casting the decisive vote. A common expression in the press was " As goes Stewart, so goes the court." During the more liberal days of the Warren Court (1962-69), Stewart was often in the minority but with the passing of that era he again became what he remains today, a crucial swing man. As a centrist, Stewart has shrunk from formulating sweeping principles that would place him in one camp or another. Says Stanford Law Professor Gerald Gunther: " He's not going to be remembered as a great Justice, but that's part of his strength in a way. He was not an ideologue, not an extremist. They only remember the ones who stake out positions."
To Stewart, a judge is supposed to decide only the specific case before him and to do so as narrowly as possible. A Justice, he said last week, should not "think of himself as some great big philosopher-king." He believes that social and economic issues should be left to legislators, even when they handle them poorly. He once derided a Connecticut anticontraceptive statute as an "uncommonly silly law"—and at the same time voted to uphold it. To some, this restraint betokened a lack of drive or leadership. Says one law professor: He was a real disappointment. He was a responder. Adds Dennis Hutchinson, a professor at Georgetown Law Center, "He didn't have a hell of a lot of influence on his brethren."
Though impossible to pigeonhole, Stewart has generally defended civil rights. He creatively used reconstruction Era statutes to strike down race discrimination, but he opposed Government-mandated affirmative action (socalled reverse discrimination) as well. A former chairman of the Yale Daily News who almost became a journalist, he believes fervently in a vigorous press. Purveyeors of hard-core pornography in his view, deserve less protection. In his most famous phrase, Stewart said he could not define pornography, "but, I know it when I see it." He joked last week that the words might turn up on his tombstone.
Stewart has always relished his work. He never missed a day of oral arguments and often peppered attorneys with questions. His opinions are notably craftsmanlike, concise and crisply turned. An affable man away from the bench, his major interests aside from the law and his family (he has three children) are fishing and the Cincinnati Reds. During the 1973 playoffs between the Reds and the New York Mets, he was hearing arguments at the court and had his clerks slip him inning-by-inning, then batter-by-batter, reports. When Vice President Spiro Agnew's resignation came through during the climactic game, one clerk's note read, "Kranepool flies to left. Agnew resigns."
Stewart insisted last week that it was precisely because he retained his energy and breadth of interests that he wanted to quit while he could still enjoy them. Judges know best when to bring their tenure to an end, he said. After all, they serve during good behavior—"and whatever else growing old is, it isn't bad behavior." —By Bennett H. Beach. Reported by Evan Thomas/Washington