Constitutional Law in 1958–1959: I

There was one change in the personnel of the Supreme Court during the 1958 Term. Justice Harold H. Burton of Ohio, who had been appointed by President Truman late in 1945, retired on October 13, 1958. For his place President Eisenhower selected 44-year-old Potter Stewart, a Cincinnati Republican whom he had appointed to the Court of Appeals for the Sixth Circuit in 1954. A graduate of Yale College and the Yale Law School (1941), Justice Stewart was given a recess appointment on October 14, 1958, but it was not confirmed by the Senate until May 5, 1959. The vote was 70 to 17, all Senators voting against confirmation being Southern Democrats. This experience underscored once more, as in the case of Justice Brennan, the risks involved in recess appointments to the Court, since Justice Stewart sat there for most of the Term before confirmation was had. Whether this affected his votes on cases is a matter of sheer speculation, but the occasion for it is highly regrettable. A new Justice should be as independent as an old one, from the very beginning his service. Public controversy over the Court's recent decisions, particularly in the security field, continued during the 1958 Term. Pressure for legislation designed to overturn specific Court decisions or to curb the Court's powers continued in the First Session of the 86th Congress, but was less intense than in the previous Congress.