If Potter Stewart were still alive, he would continue being the same thing he was during his 23-year tenure on the Court -- a very unpredictable swing vote.
didn't Stewart have a very similar record to Stevens in the five and a half terms they were on the court? I remember reading somewhere that Scalia's presence on the court pushed Stevens and O'Connor (and later Souter and Kennedy) away from the conservatives. Being from a similar background to Stevens (i.e. midwestern WASP) - a part of me wonders if Stewart wouldn't have done the same.
I remember Stevens saying somewhere Stewart never reversed Stevens’ court of appeals decisions. But if you look at their votes in many cases they don’t seem to align (notable exception of
Gregg v. Georgia), and Stevens said in his book he often disagreed with him but was a great admirer of Stewart.
My suspicion is that Stewart would be a fairly firm liberal now, since there are many more substantive due process cases; he favoured strong safeguards in capital cases - Stevens even suggested Stewart would have come to the same conclusion as he and Blackmun did here (see
Baze v. Rees; Callins v. Collins, cert. denied . In any case, since the right of the court is so much more about originalism now, he would certainly not be part of it. This, I suppose, is part of the shift in what SCOTUS decides, whereby jurists like Hugo Black would move to the ‘right’ and Harlan II (and Stewart) would move to the ‘left’.
