Appointed by President Eisenhower, Justice Potter Stewart served on the United States Supreme Court from 1958 until his surprise retirement in 1981 at the age of only 66, allowing President Reagan to fill his seat. After Justice Stewart's death in 1985, Bob Woodward identified him as having been the leading inside source for the embarrassing book about the Supreme Court entitled The Brethren (1979). Today few law students hear much about Justice Stewart, and newspapers largely ignore his legacy.

Justice Stewart was one of the more conservative justices of the 20th century, and some of his opinions among the most important. One of his concurrences persuaded no one in 1967 but is likely to command a majority of the Court today.

Justice Stewart's most important decision was his 5-4 ruling in Harris v. McRae (1980), which denied a claim for a constitutional right to taxpayer-funded abortion. Justice Stewart had previously opposed creating a new constitutional "right to privacy," and dissented from Griswold v. Connecticut in 1965 when it created a new right to sexual privacy out of the so-called "penumbra" of the Bill of Rights. But in 1980 the Supreme Court was pro-abortion by a 7-2 margin, and it was remarkable that Justice Stewart attained a 5-4 decision against a constitutional requirement for taxpayer-funded abortion from that mindset.

Justice Stewart dissented from many of the worst decisions of the Warren Court, despite their popularity in the liberal media. Over 40 years later, Justice Stewart's dissents are becoming mainstream. In Abington School District v. Schempp (1963), Justice Stewart opposed reinterpreting the Establishment Clause to be hostile to religion. In Miranda v. Arizona (1966), Justice Stewart opposed inventing a new privilege against self-incrimination. Today a majority of the Court appears to agree more with Justice Stewart than with the Warren Court on these points.

It was Justice Stewart's lone concurrence in a property case that is being revived by the Court this fall. He was the first to articulate the pro-private-property concept of a "judicial taking," without using the precise phrase: "The beach [belonging to a property owner] was declared by the state court to be in the public domain. Of course the court did not conceive of this action as a taking. As is so often the case when a State exercises its power to make law, or to regulate, or to pursue a public project, pre-existing property interests were impaired here without any calculated decision to deprive anyone of what he once owned. But the Constitution measures a taking of property not by what a State says, or by what it intends, but by what it does." Hughes v. Washington, 389 U.S. 290, 297-98 (1967) (Stewart, J., concurring).

Justice Stewart continued, "Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property - without paying for the privilege of doing so. Because the Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate, I join in reversing the judgment." Id. at 298.

Not a single Justice joined Justice Stewart's above concurrence in 1967, which emphasized the need for protection against a judicial taking. Yet now, 40 years later, Justice Stewart's position is on the verge being embraced by the Supreme Court. The Court took the unusual step of granting review of a Florida state supreme court decision on the ground that the state court decision may have been a "judicial taking" of property owners' rights in beaches without just compensation. Stop the Beach Renourishment v. Florida, No. 08-1151.