FORTAS, ABE

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 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.

"For a justice of this ultimate tribunal [the U.S. Supreme Court], the opportunity for self-discovery and the occasion for self-revelation is great."
—Abe Fortas

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 richardm. nixon, then running for the presidency, 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 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.

further readings

Kalman, Laura. 1990. Abe Fortas: A Biography. New Haven, Conn.: Yale Univ. Press.

cross-references

Children's Rights.

Abe Fortas

A noted civil libertarian, Abe Fortas (1910-1982) served only four years on the Supreme Court before a series of charges led to his resignation.

Abe Fortas, who was nominated by his friend President Lyndon B. Johnson to the U.S. Supreme Court in 1965, was born on June 19, 1910, in Memphis, Tennessee. His parents were Orthodox Jews who had emigrated from England. At the age of 15 he was graduated second in his class from a Memphis public high school and earned a scholarship to Southwestern College (now Rhodes College) in his hometown.

He received his B.A. in 1930 and, based on his stellar performance as an undergraduate, both Harvard and Yale Law Schools offered him scholarships. (A $50 difference per month in the Yale stipend resulted in Fortas' choice of New Haven over Cambridge.) The future justice's consistency as a scholar continued in law school. By his senior year he was editor-in-chief of the Yale Law Journal, a position usually reserved for the student achieving the top academic rank in the class. He received his law degree in 1933.

An offer to join the Yale faculty capped Fortas' laudable law school career. Before he could begin his teaching duties, however, he left for Washington to plunge into the New Deal as a member of the legal staff of the Agricultural Adjustment Administration. William O. Douglas (also a future justice of the U.S. Supreme Court) called him from there to the Securities and Exchange Commission in 1934. During these years Fortas managed to hold his faculty position at Yale while participating in the whirlwind life of a New Dealer. In 1935 he married Carolyn Eugenia Agger, whom he had met while at Yale.

Fortas left academics in 1939, however, to work under the tutelage of Harold lckes as general counsel of the Public Works Administration. The formidable lckes was so impressed with Fortas' work that in 1942 he promoted him to be his undersecretary of the Department of the Interior. Fortas continued to serve in the Franklin Roosevelt administration throughout World War II. When the conflict ended, Fortas joined his former Yale law professor, Thurman Arnold, as a partner in the new firm of Arnold & Fortas, which was to become one of Washington, D.C.'s most successful and prominent law firms. Later his wife became one of the firm's partners. She and her husband had no children.

One of the many contacts Abe Fortas made during his New Deal years was with a young congressman from Texas, Lyndon Johnson. In 1948 he defended Johnson in a challenge to his Texas Democratic senatorial primary victory. This marked the beginning of Fortas' long friendship with Johnson. In 1964 LBJ won the presidency in his own right, after having completed the term of the assassinated John F. Kennedy. Fortas declined Johnson's offer to name him attorney general.

In 1965 President Johnson persuaded Justice Arthur J. Goldberg to accept an appointment to be the United StatesAmbassador to the United Nations. On July 28, 1965, after two decades of private practice, Fortas was nominated by Johnson to replace Goldberg on the Supreme Court. LBJ's memoirs describe his reasons for nominating Fortas to be an associate justice: "I was confidant that the man [Fortas] would be a brilliant and able jurist. He had the experience and the liberalism to espouse the causes that both I and Arthur Goldberg believed in. He had the strength of character to stand up for his own convictions, and he was a humanitarian." Johnson was also interested in continuing the tradition of the Supreme Court's "Jewish seat." So, in all categories, Fortas was the perfect nominee. The Senate confirmed him by a voice vote on August 11, 1965.

In 1968 Chief Justice Earl Warren announced his decision to retire. Johnson had declared that he would not run in the November presidential election, but he sought to nominate Fortas to become chief justice before he left office. During the confirmation process, the U.S. Senate found that Fortas had counseled Johnson on national policy even after he had become a Supreme Court justice. It was also revealed that Fortas had received $15,000 to conduct a series of university seminars in the summer of 1968. In October of 1968 a filibuster in the Senate stalled Fortas' confirmation. Amid charges of cronyism from Democrats and Republicans, Johnson withdrew the nomination.

Even before his elevation to the Supreme Court Fortas had been a noted civil libertarian. In fact, the Supreme Court had appointed him as counsel for the indigent Clarence Earl Gideon, whose famous 1963 case of Gideonv. Wainwright set the precedent for the right to counsel in virtually all criminal cases. Once on the Court, Fortas wrote the majority opinion for the 7:2 decision in Tinkerv. Des Moines Independent Community School District (1969). The Court ruled that students have a right, under the First Amendment, to engage in peaceful, nondisruptive protest. The public school had banned the wearing of black armbands by students to protest the Vietnam War. The Court found that the armbands were not disruptive and that the school had violated the students' First Amendment rights, which protect the freedom of oral and symbolic speech.

In May of 1969 LIFE magazine charged Fortas with unethical behavior. The magazine revealed that in 1966 Fortas had received $20,000 from the family foundation of Louis Wolfson, an indicted stock manipulator. This was the first of what was to be a series of annual payments. Fortas had returned the money, however, and terminated the relationship. There was some talk of impeachment in Congress, and Fortas decided to resign from the Court on May 14, 1969. In his letter of resignation Fortas asserted his innocence and stated that he was leaving his position to allow the Court "to proceed with its work without the harassment of debate concerning one of its members." He returned to his private practice and died, at the age of 71, on April 5, 1982.

Further Reading

Kalman, Laura, Abe Fortas: a biography, New Haven: Yale University Press, 1990.

Murphy, Bruce Allen, Fortas: the rise and ruin of a Supreme Court Justice, New York: W. Morrow, 1988. □

FORTAS, ABE

FORTAS, ABE (1910–1982), U.S. lawyer and Supreme Court justice. Fortas was born in Memphis, Tennessee, son of a cabinetmaker. A brilliant student, he graduated from Southwestern College (1930) and Yale Law School (1933), where he was Law Journal editor. Upon graduation, he was appointed to the Yale law faculty. Fortas married Carolyn Agger, who also became a distinguished lawyer. In 1937 he entered full-time government service with the Securities Exchange Commission and was general counsel for the Public Works Administration. From 1942 to 1946 he served as undersecretary of the interiorand also was an adviser in 1945 to the American delegation at the San Francisco Conference which founded the United Nations. During this period Fortas became friendly with Lyndon B. Johnson, the future president.

In 1946 Fortas entered private legal practice. His firm, Arnold, Fortas & Porter, became one of the most prominent and wealthy in Washington, representing many important corporations. As counsel for Lyndon Johnson, Fortas successfully countered the challenge to the validity of Johnson's election to the U.S. Senate in 1948. In the 1950s Fortas and his firm became involved in civil liberties cases. He successfully defended Owen Lattimore, a victim of the McCarthy era communist charges. Some of his criminal cases became legal landmarks. In the Durham case, he persuaded the Federal District Court to adopt a new standard for criminal insanity, determining that an accused is not criminally responsible if his unlawful act was a product of mental disease or defect. In yet another, Fortas successfully argued that states should be required to provide free legal counsel for indigent defendants charged with major crimes. When President Johnson assumed office in 1963, Fortas became a key presidential aide and adviser. He worked out a complicated trust agreement for the Johnson family, handled two sensitive administration scandals, aided the president in the Dominican crisis, and advised him on issues ranging from racial problems to the Vietnam War. In July 1965 Johnson appointed Fortas to the Supreme Court. As an associate justice, Fortas was known for his penetrating mind, skillful legal writing, and concern for individual rights. He generally joined the Court's libertarian, activist majority. One of the most significant of his opinions was in the Galt case, which extended the constitutional rights to due process of law to juveniles being tried in special juvenile courts. Fortas firmly believed in the protection of personal privacy, and opposed the widespread use of civil disobedience to attain political ends. His pamphlet Concerning Dissent and Civil Disobedience (1968) presented a rational yet passionate plea for the rejection of political violence and for respect for law and the democratic process.

In the summer of 1968 Johnson nominated Fortas to succeed retiring Chief Justice Warren. Opponents of the nomination succeeded in blocking Fortas' confirmation; they charged that he was too liberal and too close an adviser to President Johnson, and that the new appointment should be deferred until after the approaching presidential election. Moreover, while on the Court Fortas had accepted a fee for serving as lifetime consultant to the charitable Wolfson Family Foundation. When its founder, Louis E. Wolfson, was indicted for stock manipulation, Fortas returned the fee and severed his connection with the Foundation; but the disclosure of the association now aroused bitter public controversy. Fortas maintained that he had done no wrong; nevertheless, in May 1969 he resigned from the Court under heavy pressure and returned to private practice.

bibliography:

Rodell, in: New York Times Magazine (July 28, 1968), 12–13, 63–68; Graham, ibid. (June 4, 1967), 26, 86–96; United States 90^th Congress, 2^nd Session, Senate; Executive Report No. 8 (1968); 89^th Congress, 1^st Session, Senate Committee on the Judiciary, Hearings (Aug. 5, 1965).

[Barton G. Lee]