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December 7, 1985

Undated (AP) _ Mike Nobel, a spokesman for for Dartmouth-Hitchcock Medical Center in Hanover, N.H., Stewart died at 3:20 p.m. after suffering a stroke. Stewart was admitted to the hospital on Dec. 2 after becoming ill at his daughter’s house in Dummerston Vermont.

He retired from the bench July 3, 1981, citing an urge to spend more time with his grandchildren. He was succeeded by Justice Sandra Day O’Connor, the first woman named to the Supreme Court and President Reagan’s only selection to date.

Although a member of the liberal court dominated by the late Chief Justice Earl Warren through the 1960s, Stewart remained the personification of a middle-of-the-road judge even though tags such as ″moderate Republican″ and ″centrist″ displeased him.

″I never thought in terms of putting a label on myself except trying to be a good lawyer,″ Stewart once said.

″The mark of a good judge is a judge whose opinion you can read and ... have no idea if the judge was a man or woman, Republican or Democrat, a Christian or a Jew, and, if a Christian, a Protestant or a Catholic,″ he said. ″You just know he or she was a good judge.″

A man whose considerable influence on the Supreme Court came from his freedom of ideology, Stewart told reporters after he retired: ″I think it’s the first duty of a justice to remove from his judicial work his own moral, philosophical, political or religious beliefs and not to think of himself as being here as some great big philosopher king, to just apply his ideology.″

Stewart’s judicial career was marked by a keen wit on the bench and a facile writing style that yielded many judicial equivalents of one-liners.

The most famous example of that style was contained in an obscenity decision. Stewart admitted being unable to come up with a working defintion of obscenity but added, ″I know it when I see it.″

He once described his World War II duty as a Naval Reserve officer as ″floating around on a sea of 100 percent octane, bored to death 99 percent of the time and scared to death 1 percent.″

He was born Jan. 23, 1915, in Jackson, Mich., where his family was vacationing.

Stewart grew up in Cincinnati, Ohio, in an atmosphere of law. His father, a prominent lawyer and onetime mayor of Cincinnati, once served as a member of the Ohio Supreme Court.

Stewart attended Hotchkiss School in Connecticut, then Yale and the Yale Law School.

He worked as a lawyer in New York City for about three years before returning to Cincinnati, where he became involved in Republican politics. Stewart served as a city council member and as vice mayor.

He had no judicial background when in 1954 President Dwight D. Eisenhower named Stewart to the 6th U.S. Circuit Court of Appeals. At the time, Stewart, at 39, was the nation’s youngest federal judge.

Four years later, on Oct. 7, 1958, Eisenhower elevated Stewart to the Supreme Court.

Although overshadowed early in his tenure by such justices as Hugo Black and William O. Douglas and Chief Justice Warren, Stewart’s moderation helped him emerge as a key member of the court in the late 1960s as a still- continuing battle between liberals and conservatives took hold.

Stewart often held the pen for the drawing of lines between individual liberty and societal protection, especially in defining a person’s right to be free from unreasonable police intrusions.

In 1967, Stewart’s opinion in Katz vs. United States revolutionized legal interpretation of such Fourth Amendment protections that previously had been tied closely to property ownership. He said the Constitution ″protects people, not places.″

When the Supreme Court in 1972 struck down the death penalty for being capriciously and arbitrarily imposed by the states, Stewart’s concurring opinion stole the spotlight.

″The death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,″ Stewart wrote.

Stewart later joined the court’s majority in restoring capital punishment after numerous states rewrote their death penalty laws.

Stewart’s retirement at age 66 stunned the legal profession and several of his brethren. He was the fourth youngest among the court’s nine members.

He had told no one on the court except Chief Justice Warren E. Burger about his retirement plans before announcing them.

″It’s better to go too soon than stay too long,″ Stewart said in explaining his decision.

But he said the idea of retiring was triggered by a letter he received in early 1980 from Donna Gallus, then a schoolgirl in St. Cloud, Minn. Her letter, written for extra credit in a social sciences course, said: ″I would like to know why you have stayed on the court so long.″

Stewart kept busy in retirement, finding much law-related work to do when not spending time at his vacation home in Sugar Hill, N.H., to be closer to his grandchildren.

He served as an international arbitrator, sat on five federal appeals courts as a pinch-hitting judge, lectured at law schools, helped host a public television series on the Constitution and served as a volunteer reader of textbook materials for blind law students.

″I’ve never been one for hobbies and such, never was much good in manual training,″ he told The Associated Press in a 1983 interview. ″So it’s probably a good thing to stay active in my work.″

He and his wife, Mary Ann - he called her ″Andy″ - remained socially active in Washington.

Vice President George Bush was one of Stewart’s closest longtime friends. And Mrs. Stewart often played tennis with Justice O’Connor.

Stewart last had been hospitalized in 1982, when he broke several ribs and chipped his collarbone in a fall at his New Hampshire home.

He later periodically complained about his diminished mobility stemming from that fall. ″I just feel on the verge of falling down every so often,″ he told a reporter.

In addition to his decisions, Stewart left a legacy of men and women who served as his law clerks - many of them now prominent lawyers and teachers.

His first Supreme Court law clerk, Terrance Sandalow, is now dean of the University of Michigan law school.

Another former law clerk, Harvard law professor Laurence Tribe, is perhaps the nation’s foremost constitutional scholar.

Tribe said Stewart was ″a person with an open mind and an elegant pen, and a deep commitment to constitutional principles .... a person of wit and courage and grace and great intellectual power.″

″He was often criticized as being a person without any clear constitutional agenda, and I think in a sense that might have been true,″ Tribe said.

″His reaction to cases was highly contextual. The fact that it was not ideological or doctrinaire reflected not the absence of any clear constitutional compass,″ Tribe said, ″but the presence of an open and searching mind, which in the end is the greatest praise one can give to any judge.″

Stewart is survived by his wife, the former Mary Ann Bertles; his three children, Harriet, Potter Jr. and David, five grandsons and a granddaughter.

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