Stewart received a
recess appointment from President Eisenhower as an
associate justice on the U.S. Supreme Court on October 14, 1958, to succeed
Harold Hitz Burton. He took the
judicial oath of office that same day. He was formally nominated to the same position by President Eisenhower on January 17, 1959. Public hearings were held before the
Senate Judiciary Committee on April 9 and 14, 1959, and the Committee voted on May 5, 1959, to forward his nomination with a favorable report. All 17 votes against his confirmation came from
Southern Democrats (both senators from
Alabama,
Arkansas,
Georgia,
Louisiana,
Mississippi,
North Carolina,
South Carolina and
Virginia, plus
Spessard Holland of
Florida). He served as Circuit Justice for the Sixth Circuit from October 14, 1958, to July 3, 1981, and as Circuit Justice for the Fifth Circuit from October 12, 1971, to January 6, 1972. A case early in his Supreme Court career showing his role as the swing vote during that time is
Irvin v. Dowd. Stewart was temperamentally inclined to moderate, pragmatic positions, but was often in a dissenting posture during his time on the
Warren Court. Stewart believed that the majority on the Warren Court had adopted readings of the First Amendment Establishment Clause (
Engel v. Vitale (1962),
Abington School District v. Schempp (1963)), the Fifth Amendment privilege against self-incrimination (
Miranda v. Arizona (1966)), and the Fourteenth Amendment guarantee of Equal Protection with regard to voting rights (
Reynolds v. Sims (1964)) that went beyond the framers' intention. In
Engel, Stewart found no precedent to remove school sponsored prayer, and in
Abington, Stewart refused to strike down the practice of school sponsored Bible reading in public schools; he was the only justice who took this position in both cases. Stewart dissented in
Griswold v. Connecticut (1965) on the ground that, while the Connecticut statute barring the use of contraceptives seemed to him an "uncommonly silly law", he could not find a general "Right of Privacy" in the Fourteenth Amendment Due Process Clause. Before the appointment of
Warren Burger as
Chief Justice, many speculated that President
Richard Nixon would elevate Stewart to the post, some going so far as to call him the front-runner. Stewart, though flattered by the suggestion, did not want again to appear before and expose his family to the Senate confirmation process. He also did not relish the prospect of taking on the administrative responsibilities that were delegated to the Chief Justice. Accordingly, he met privately with the President to ask that his name be removed from consideration. On the Burger Court, Stewart was seen as a centrist justice and was often influential. He joined the decision in
Furman v. Georgia (1972), which invalidated all
death penalty laws then in force, and he then joined in the Court's decision four years later,
Gregg v. Georgia, which upheld the revised capital punishment legislation adopted in a majority of the states. Despite his earlier dissent in
Griswold, Stewart changed his views on the
right of privacy and was a key mover behind the Court's decision in
Roe v. Wade (1973), which recognized the right to abortion under that right. Stewart opposed the
Vietnam War and on a number of occasions urged the Supreme Court to grant
certiorari on cases challenging the constitutionality of the war. Stewart consistently voted against claims of criminal defendants in the area of federal habeas corpus and collateral review. He was concerned about broad interpretations of the Due Process and the Equal Protection Clauses. He was the lone dissenter in the landmark juvenile law case
In re Gault (1967). That case extended to
minors the right to be informed of their rights and the right to an attorney, which had been granted to adults in
Miranda v. Arizona (1966) and
Gideon v. Wainwright (1963), respectively. In the
obscenity case of
Jacobellis v. Ohio (1964), Stewart wrote in his short concurrence that "hard-core pornography" was hard to define, but "
I know it when I see it, and the motion picture involved in this case is not that." Justice Stewart went on to defend the movie in question (
Louis Malle's
The Lovers) against further censorship. One commentator opined, "This observation summarizes Stewart's judicial philosophy: particularistic, intuitive, and pragmatic."
Fourth Amendment Before 1967, Fourth Amendment protections were mostly limited to notions of property: possessory geographical locations such as apartments or physical objects. Stewart's opinion in
Katz v. United States established that the Fourth Amendment "protects people, not places." In
Almeida-Sanchez v. United States (1973), Stewart wrote that roving patrols of the
United States Border Patrol must have some justifiable reason before stopping a car. They could not stop and search automobiles without probable cause merely because a stop was made within from the international border. In
Whalen v. Roe (1977), Stewart, in his concurrence, objected to any broad establishment of a right to privacy. He said that prior Court decisions did not "recognize a general interest in freedom from disclosure of private information." Stewart was one of the strongest dissenters in the trend of denying litigants access to the federal courts. In 1976, Stewart extended the Act again in
Runyon v. McCrary, which states that private schools open to all white students could no longer exclude black children, and all other offers to contract made to the general public were also made subject to the 1866 Act. In
Shuttlesworth v. City of Birmingham (1965), Stewart held for the Court that police could not use an anti-loitering law to keep civil rights workers from standing or demonstrating on a sidewalk. ==Retirement and death==