Quizzing the Justice

In their frequent irritation at Supreme Court decisions, some Senators cannot resist the temptation to make court appointees squirm. Last week Cincinnati's Potter Stewart, 44, youngest justice in 20 years, got the special treatment when the Judiciary Committee took up his interim appointment (to succeed ailing Justice Harold Burton, TIME, Oct. 20).

The committee, as Lawyer Stewart well knew, was run by Mississippian James O. Eastland, a veteran lawyer himself, and was studded with high-seniority Southerners. Still and forevermore rankled by the high court's 1954 school desegregation ruling--a case in which Stewart played no part--Eastland & Co. lost no time putting Stewart on trial.

Eastland: Is [the Supreme Court] a policy-making branch of the Government?

Stewart: Insofar as the decision of cases--and these almost invariably are difficult cases--has an impact upon policy I should say that it could be judged to be a policy-making body.

Q. Do you think that the Supreme Court has the power to amend the Constitution?

A. Certainly not to amend it. No.

Q. Isn't it true that the Constitution has the same meaning today that it had when it was adopted?

A. The genius of the framers of that document is apparent when we realize that the words that they used at the end of the 18th century are still alive and are still applicable . . . to a changing and growing society.

Eastland began baiting Stewart on the legal reasoning in 1954's keystone Brown v. Board of Education desegregation decision. Replied Potter Stewart evenly: "I didn't come here today to criticize the institution of the Supreme Court or to do any harm to it ... I never so far as I know decided a case on any basis other than applying the law as I understand it to the facts ... In many cases the law is not easy to find. Certainly, in many cases before the Supreme Court of the U.S. If they were easy cases, they would not be there."

Pressed Arkansas' Lawyer John McClellan: Did Stewart agree in the school decision with the court's reasoning and philosophy? Stewart paused to choose words. "If I give a simple yes or no answer it would not only disqualify my participation in pending cases and heaven only knows how many future cases, but it seems to me it would involve a serious problem of simple judicial ethics . . . Let me say this so there will be no misunderstanding. I would not like you to vote for me because I am for overturning that decision, because I am not. I have no prejudgment against that decision."

In midflight Eastland recessed the hearing so everybody could go out to watch the Washington Senators open the season against the Baltimore Orioles (Senators 9, Orioles 2), which meant that Justice Stewart would be back again this week.

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