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 States Ambassador 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.
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.