FORTAS, ABE (1910–1982)

Abe Fortas of Tennessee, a graduate of Yale Law School, became a new deal lawyer. As undersecretary of state, he opposed the removal and internment of Japanese Americans. In 1946 Fortas cofounded a Washington law firm whose corporate clients made him rich and influential, but he contributed his time to defending the rights of under-dogs and alleged security risks. One client, lyndon b. johnson, became a close friend. Fortas continued as his adviser after Johnson became President, and Johnson later appointed Fortas to the Supreme Court.

Justice Fortas served for less than four years, from October 4, 1965, to May 14, 1969. In 1968, President Johnson nominated him to serve as Chief Justice of the United States, succeeding earl warren, but a Senate delay in confirming him, initiated primarily by Republicans eager to save the appointment in case a Republican was victorious in November, caused Fortas to withdraw from consideration before the 1968 Supreme Court Term opened. Before that term was over, Justice Fortas had resigned his seat because of revelations of alleged improprieties in his financial activities.

Four years away from practice is a very brief period in which to develop an overall judicial philosophy. Nevertheless, Fortas developed a distinctive style, notable for flowery prose, the artful phrase, and emphasis on the underlying facts of the particular case. He also developed distinctive positions on particular issues.

Fortas's first amendment analysis was the most well-developed aspect of his constitutional theory. He disparaged the speech-conduct distinction adhered to by Justice hugo l. black and others; Fortas thought both speech and conduct could warrant First Amendment protection. But while he gave full protection in cases like tinker v. des moines independent community school district (1969) to nonviolent, nondisruptive speech and conduct, he believed, as he said in Barker v. Hardway (1969), that speech or conduct that is "violent and destructive interference with the rights of others" falls outside the scope of First Amendment protections. In drawing this line in individual cases, Fortas focused tightly on the specific facts of the case. For instance, in Brown v. Louisiana (1966), the arrest of demonstrators for conducting a sit-in in a segregated public library was unconstitutional because the particular sit-in was "neither loud, boisterous, obstreperous, indecorous, nor impolite."

Those who disagreed with Fortas's approach asked, as in adderley v. florida (1966), whether the type of demonstration at issue could be disruptive and so was legitimately subject to state prohibition. Fortas reached opposite conclusions by weighing the potential for violence only of the particular demonstration involved. He thus gave greater protection to expression in cases the Supreme Court reviewed. But his opinions gave little guidance, simply reporting his own reactions to the facts of the case. Moreover, Fortas occasionally strayed from this approach. Dissenting in Street v. New York (1969), he was willing to affirm a conviction under a state flag desecration statute, not because the particular flag-burning threatened disorder but because a government seeking to avoid fire hazards could have prohibited all public burning. There, Fortas stated "action, even if clearly for serious protest purposes, is not entitled to the pervasive protection that is given to speech alone." Seemingly, it again was reaction to the particular factual situation that stirred Fortas, but he was unable to articulate persuasively the reasons for the particular sanctity he attached to the American flag.

When appointed, Fortas already was well-known as the victorious attorney in gideon v. wainwright (1963), establishing indigents' right to counsel in criminal cases. As a Justice, he continued to stress procedural regularity and the need for law enforcement officers to obey the law. He was not afraid to extend protections further than the warren court majority, as he urged in alderman v. united states (1969) and Desist v. United States (1969). One example is the Fifth Amendment right against self incrimination which the majority limited to evidence of a testimonial or communicative nature in schmerber v. california (1966) and united states v. wade (1967). Fortas disagreed, saying it violated the privilege to subject a defendant to blood tests, or to make him repeat words uttered by the perpetrator of the crime, or to give a handwriting sample. His principle was that the privilege forbade compelling any evidence the gathering of which requires "affirmative, volitional action" on the part of the defendant. He applied that test in a somewhat conclusory fashion, however, maintaining that the accused could be made to stand in a lineup, "an incident of the state's power to arrest, and a reasonable and justifiable aspect of the state's custody resulting from the arrest."

In epperson v. arkansas (1968) Fortas, for the Court, struck down an Arkansas statute that prohibited teaching evolution. Epperson suggests that the fact that a prohibition owes its existence to a particular religious dogma or religious campaign may be sufficient to invalidate it under the establishment of religion clause—a position that Fortas might have preferred as an explanation for the invalidity of anti-abortion legislation, had he remained on the Court to decide that issue. That case and those in which Fortas championed the rights of children, such as Tinker and his landmark opinion in re gault (1967), or suggested the desirability of parents making some important decisions with their children rather than having a state-prescribed rule, such as Ginsburg v. New York (1968) (dissent), foreshadowed themes that have since proved important in other contexts (health services, education, contraception, and abortion, for example). They suggest that Fortas would have had much to contribute to the Court had his service not been so limited in duration.

Martha A. Field
(1986)

Bibliography

Graham, Fred 1969 Abe Fortas. Pages 3015–3027 in Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1969. New York: Chelsea House.

Massaro, John 1982–1983 LBJ and the Fortas Nomination for Chief Justice. Political Science Quarterly 97:603–621.

Shogan, Robert 1972 A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court. Indianapolis: Bobbs-Merrill.