Abe Fortas

Abe Fortas served as a justice of the U.S. Supreme Court from 1965 to 1969. A renowned and powerful Washington, D.C., attorney before he joined the Court, Fortas resigned from the bench in disgrace after allegations of unethical behavior led to calls for his impeachment.

Fortas was born June 19, 1910, in Memphis, to English immigrant Jews. He graduated from Southwestern College, in Memphis, in 1930 and received a law degree from Yale Law School in 1933. An outstanding student at Yale, Fortas became a protégé of William O. Douglas, a member of the school’s faculty and a future Supreme Court justice. Following graduation Fortas divided his time between Yale and Washington, D.C., serving as an assistant professor at the school and working in several federal government agencies.

Fortas’s arrival in Washington, D.C., coincided with President Franklin D. Roosevelt’s New Deal administration. Under Roosevelt, the federal government greatly expanded as it assumed more regulatory power over the national economy. Fortas severed his connections with Yale in 1937 and went to work full-time for the securities and exchange commission, which was chaired by Douglas.

Fortas proved to be an effective administrator. He joined the department of the interior in 1939 and soon became a confidant of Secretary of the Interior Harold L. Ickes. Ickes, a powerful member of the Roosevelt administration, named Fortas undersecretary in 1942. Fortas served in that position until 1946 when he left the government to start a private law firm.

Fortas and Thurman W. Arnold, a former law professor and chief of the Antitrust Division of the Justice Department, created the firm of Arnold and Porter to help corporations and other powerful interest groups deal with the new federal bureaucracy. Fortas knew his way around the halls of power and became an influential

lobbyist and interpreter of government regulations in post-World War II Washington, D.C.

His path to the Supreme Court began in 1948 when he led the legal team that fought to place Lyndon B. Johnson’s name on the Texas election ballot for U.S. senator. Johnson, a Texas congressman in the 1940s, got to know Fortas while Fortas was at the Department of the Interior. The 1948 Texas Democratic primary election gave Johnson an 87-vote margin of victory, but his opponent, Coke R. Stevenson, alleged that Johnson’s supporters had stuffed the ballot box with phony ballots. After Stevenson filed suit in federal court, a judge removed Johnson’s name from the final election ballot, pending an investigation into the alleged election irregularities. Fortas convinced Justice Hugo L. Black of the Supreme Court to order the restoration of Johnson’s name, pursuant to Black’s judicial power to review the actions of the federal courts in Texas. Johnson was elected to the Senate and became majority leader in 1955. He was elected vice president of the United States in 1960 and became president on November 22, 1963, following the assassination of President John F. Kennedy.

Though Fortas served the powerful, he also provided pro bono (unpaid) legal services to those with pressing legal issues. His most famous pro bono case was Gideon v. wainwright 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). A Florida court had convicted Clarence Gideon, a drifter, and small-time gambler, of breaking into a poolroom and removing the change from a vending machine. Gideon could not afford an attorney and the court would not appoint one. Gideon prepared his own appeal to the U.S. Supreme Court, arguing that denial of legal counsel because a person could not afford an attorney was unconstitutional. The Court accepted his appeal and appointed Fortas to serve as his attorney.

Fortas convinced the Court to overrule its precedent in Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), in which the Court held that an ordinary person charged with a felony could do an adequate job of representing himself or herself and was not entitled to the appointment of an attorney. In his majority opinion for Gideon, Justice Black ruled that an indigent defendant in a criminal trial has a constitutional right to a court-appointed attorney. In so ruling, the Court incorporated through the Fourteenth Amendment the Sixth Amendment’s right to counsel, thus making that right applicable to state as well as federal criminal proceedings.

When Johnson assumed the presidency, he looked to Fortas as a confidential adviser. Johnson wished to appoint Fortas to the Supreme Court, but there were no vacancies. He convinced Justice Arthur J Goldberg to resign from the Court in 1965 to become U.S. ambassador to the United Nations. Goldberg left the Court reluctantly, and Johnson nominated Fortas to fill its so-called Jewish seat. The “Jewish seat” began with the 1939 appointment of Felix Frankfurter, who was Jewish, to succeed Justice benjamin Cardozo, also Jewish. It was assumed that for political reasons, Democratic presidents would appoint a Jewish person to that vacancy. This tradition ended with the appointment of Fortas.

Fortas fit in well with the liberal Court, then headed by Chief Justice Earl Warren. Concerned with policy more than precedent, Fortas was a strong defender of civil rights and civil liberties. His two most significant opinions dealt with the rights of children. The 1967 landmark case in re gault 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, changed the nature of the juvenile law system. Fortas and the Court essentially made the juvenile courts adhere to standards of due process, applying most of the procedural safeguards enjoyed by adults accused of crimes. Under Gault juvenile courts were to respect the right to counsel, the right to freedom from compulsory self-incrimination, and the right to confront hostile witnesses.

Tinker v. des Moines independent community school district 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), accorded juveniles First Amendment rights. Des Moines high school officials had suspended students for wearing black armbands to school to protest U.S. involvement in the Vietnam War. On appeal, Fortas rejected the idea that the school’s response was reasonable because it was based on the fear that a disturbance would result from the wearing of armbands. Fortas ruled that the wearing of armbands was “closely akin to ‘pure speech’ which … is entitled to comprehensive protection under the First Amendment.” He added that public school officials could not ban expression out of the “mere desire to avoid discomfort and unpleasantness that always accompany an unpopular viewpoint.”

In June 1968, Chief Justice Warren announced that he would retire. President Johnson nominated Fortas to succeed Warren, but the political mood of the Senate was hostile to the nomination. It had been an open secret in Washington, D.C., that Fortas continued to advise the president after joining the Court. Fortas was a key participant in Vietnam War policymaking. Some senators were troubled by his breach of the separation of powers; others, especially conservatives, attacked his liberal voting record on the Court. Republicans hoped to derail the nomination so as to give Richard. Nixon, then running for the presidency, had the opportunity to appoint a more conservative chief justice. Johnson, who had already announced he would not run for reelection, was a lame duck and could do nothing to help Fortas. Opponents conducted a filibuster when the appointment was brought to the Senate floor. In October, Fortas, sensing defeat, asked that his name be withdrawn from consideration. Warren remained on the Court until 1969 when President Nixon appointed Warren E. Burger as chief justice.

Matters worsened for Fortas, in 1969 when Life magazine reported that he had accepted a $20,000 fee from a foundation established by the family of Louis Wolfson, a financier under federal investigation for securities violations. The fee was the first of a series of annual payments that were to be made to Fortas for the duration of his life and thereafter to his widow until her death, in exchange for Fortas’s guidance of the foundation’s programs. The arrangement was terminated in 1966 when Fortas returned the money upon Wolfson’s indictment.

Despite Fortas’s ultimate return of the money, his initial acceptance of it troubled many senators. It was alleged that Fortas had done more than foundation work, giving Wolfson legal advice. The Life article noted that Wolfson had used Fortas’s name in the hope of helping himself. Fortas issued an ambiguous statement that did not resolve the situation. The Nixon administration and Republican senators hinted that Fortas should be impeached for his actions, which were contrary to the ethical provision that judges must be free of the appearance of impropriety. Fortas ended the controversy by resigning from the Court on May 14, 1969, though he contended he had done nothing wrong. This was the first time in U.S. history that a justice resigned under the threat of impeachment.

Following his resignation, Fortas sought to return to his old law firm. When the firm refused to take him back, he set up his own law practice, Fortas and Koven. He resumed advising corporate clients on how to do business in Washington, D.C., and he continued his pro bono work.

Fortas continued to practice law until he died from a ruptured aorta on April 5, 1982, in Washington, D.C.

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