Abe Fortas

Abe Fortas

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Abraham Fortas was a U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 associate justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

 from 1965 to 1969. Originally from Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...

, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

, and subsequently Harry Truman appointed him to delegations that helped set up the UN. Later, in private practice, Fortas represented Lyndon Johnson in an electoral dispute, and formed close ties with the president-to-be. Fortas also represented Clarence Earl Gideon
Clarence Earl Gideon
Clarence Earl Gideon was a poor drifter accused in a Florida state court of felony theft. His case resulted in the landmark U.S. Supreme Court decision Gideon v...

 before the U.S. Supreme Court, in a case involving the right to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...

. As a Johnson appointee to the Court, Fortas maintained a close working relationship with the president, and in 1968 Johnson tried to elevate Fortas to the position of Chief Justice, but that nomination faced a filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

 due at least in part to ethics problems that later caused him to step down from the Court. Fortas returned to private practice, sometimes appearing before the judges with whom he had served.

Early years


Fortas was born in Memphis
Memphis, Tennessee
Memphis is a city in the southwestern corner of the U.S. state of Tennessee, and the county seat of Shelby County. The city is located on the 4th Chickasaw Bluff, south of the confluence of the Wolf and Mississippi rivers....

, Tennessee. He was the youngest of five children. His father, a native of Great Britain, was an Orthodox Jew who worked as a cabinetmaker. Abe Fortas acquired a life-long love for music from his father, who encouraged his playing the violin, and was known in Memphis as "Fiddlin' Abe Fortas". He attended public schools in Memphis, graduating from South Side High School
South Side High School (Memphis, Tennessee)
South Side High School was a public high school located in Memphis, Tennessee and was part of the Memphis City Schools system. The Current Sergeant Major of the Marine Corps graduated from this school.- Noteworthy Alumni :...

 in 1926. He then attended Southwestern at Memphis (now known as Rhodes College
Rhodes College
Rhodes College is a private, predominantly undergraduate, liberal arts college located in Memphis, Tennessee, USA. Originally founded by freemasons in 1848, Rhodes became affiliated with the Presbyterian Church in 1855. Rhodes enrolls approximately 1,700 students pursuing bachelor's and master's...

), graduating in 1930.

Fortas left Memphis to enroll in Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...

. He graduated second in his class in 1933 (second only to another Memphian, Luke Finlay) and was Editor in Chief of the Yale Law Journal
Yale Law Journal
The Yale Law Journal is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School...

. One of his professors, William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

, was impressed with Fortas and arranged for him to stay at Yale and become an assistant professor.

Shortly thereafter, Douglas left Yale to run the U.S. Securities and Exchange Commission (SEC) in Washington, D.C. Fortas commuted between New Haven and Washington both teaching at Yale and advising the SEC.

Personal life



In 1935, Fortas married Carolyn E. Agger, who would become a successful tax lawyer. They had no children and after he became a Supreme Court justice, they lived in Georgetown
Georgetown, Washington, D.C.
Georgetown is a neighborhood located in northwest Washington, D.C., situated along the Potomac River. Founded in 1751, the port of Georgetown predated the establishment of the federal district and the City of Washington by 40 years...

; they also had a summer home in Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

.

Fortas was an amateur musician who played the violin in a quartet, called the "N Street Strictly-no-refunds String Quartet" on Sunday evenings. It often included notable musicians passing through town, such as Isaac Stern
Isaac Stern
Isaac Stern was a Ukrainian-born violinist. He was renowned for his recordings and for discovering new musical talent.-Biography:Isaac Stern was born into a Jewish family in Kremenets, Ukraine. He was fourteen months old when his family moved to San Francisco...

.

Early career


He served as general counsel of the Public Works Administration
Public Works Administration
The Public Works Administration , part of the New Deal of 1933, was a large-scale public works construction agency in the United States headed by Secretary of the Interior Harold L. Ickes. It was created by the National Industrial Recovery Act in June 1933 in response to the Great Depression...

 and as Undersecretary of the Interior during the Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

 administration. While he was working at the Department of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...

, the Secretary of the Interior
United States Secretary of the Interior
The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...

, Harold L. Ickes
Harold L. Ickes
Harold LeClair Ickes was a United States administrator and politician. He served as United States Secretary of the Interior for 13 years, from 1933 to 1946, the longest tenure of anyone to hold the office, and the second longest serving Cabinet member in U.S. history next to James Wilson. Ickes...

, introduced him to a young congressman from Texas, Lyndon Johnson. In 1945, Fortas was granted a leave of absence from the Department of Interior to join the armed forces. However, according to his official biography, within a month, Fortas was discharged because of an arrested case of eye tuberculosis
Tuberculosis
Tuberculosis, MTB, or TB is a common, and in many cases lethal, infectious disease caused by various strains of mycobacteria, usually Mycobacterium tuberculosis. Tuberculosis usually attacks the lungs but can also affect other parts of the body...

. Later in 1945, he was appointed by President Harry Truman as an advisor to the U.S. delegation during the organizational meeting of the UN in San Francisco and at the 1946 General Assembly meeting in London.

Private practice


After leaving government service, Fortas founded a law firm with Thurman Arnold
Thurman Arnold
Thurman Wesley Arnold was an iconoclastic Washington, D.C. lawyer. He was best known for his trust-busting campaign as Assistant Attorney General in charge of the Antitrust Division in Franklin Delano Roosevelt's Department of Justice from 1938 to 1943...

 in 1946, then known as Arnold & Fortas. Former FCC
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...

 commissioner Paul A. Porter
Paul A. Porter
Paul Aldermandt Porter was an American lawyer and politician. He served as chairman of the Federal Communications Commission from 1944 to 1946. He later joined Washington, DC law firm Arnold & Fortas, now known as Arnold & Porter.Born in Joplin, Missouri, Porter's family moved to Winchester,...

 joined the firm in 1947, and after Fortas ascension to the Supreme Court the firm dropped his name and is now known as Arnold & Porter
Arnold & Porter
Arnold & Porter LLP is a nine-office international law firm based in Washington, D.C. Arnold & Porter is well known for its trial, corporate, and antitrust work, and for its pro bono commitments and support for liberal causes.-History:...

. For many years, it has been one of Washington's most influential law firms.

In 1948, Lyndon Johnson ran for the Democratic nomination for one of Texas' seats in the U.S. Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

. He won the primary
Primary election
A primary election is an election in which party members or voters select candidates for a subsequent election. Primary elections are one means by which a political party nominates candidates for the next general election....

 by only 87 votes. His opponent, former Texas governor Coke R. Stevenson, convinced a federal judge to issue an order taking Johnson's name off of the general election ballot while the primary results were being contested; there were serious allegations of corruption in the voting process, including 200 Johnson votes that had been cast in alphabetical order. Johnson asked Fortas for help, and Fortas persuaded U.S. Supreme Court Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 to overturn the ruling. Johnson became a U.S. senator, winning the general election.

During the Red Scare
Red Scare
Durrell Blackwell Durrell Blackwell The term Red Scare denotes two distinct periods of strong Anti-Communism in the United States: the First Red Scare, from 1919 to 1920, and the Second Red Scare, from 1947 to 1957. The First Red Scare was about worker revolution and...

 of the late 1940s and early 1950s, Fortas came to widespread notice as the defense attorney for Owen Lattimore
Owen Lattimore
Owen Lattimore was an American author, educator, and influential scholar of Central Asia, especially Mongolia. In the 1930s he was editor of Pacific Affairs, a journal published by the Institute of Pacific Relations, and then taught at Johns Hopkins University from 1938 to 1963...

. In 1950, Fortas often clashed with Senator Joseph McCarthy
Joseph McCarthy
Joseph Raymond "Joe" McCarthy was an American politician who served as a Republican U.S. Senator from the state of Wisconsin from 1947 until his death in 1957...

 when representing Lattimore before the Tydings Committee
Tydings Committee
The Subcommittee on the Investigation of Loyalty of State Department Employees, more commonly referred to as the Tydings Committee, was a subcommittee authorized by in February 1950 to look into charges by Joseph R...

 and later before the Senate Internal Security Subcommittee.

Durham v. United States



Fortas was known in Washington circles to have a serious interest in psychiatry
Psychiatry
Psychiatry is the medical specialty devoted to the study and treatment of mental disorders. These mental disorders include various affective, behavioural, cognitive and perceptual abnormalities...

, still a controversial science at the time. In 1953 this expertise led to his appointment to represent the indigent Monte W. Durham, whose insanity defense had been rejected at trial two years earlier, before the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...

. Durham's defense had been denied because the District Court had applied the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...

, requiring that the defense prove the accused didn't know the difference between right and wrong for an insanity plea to be accepted. Adopted by the British House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...

 in 1843, generations before modern psychiatry, this test was still in near universal use in U.S. jurisprudence over a century later. The effect of this standard was to exclude psychiatric and psychological testimony almost entirely from the legal process. In a critical turning point for U.S. criminal law, the Court of Appeals
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...

 accepted Fortas' call to abandon the M'Naghten Rule and allow for testimony and evidence regarding defendants' mental state.

Gideon v. Wainwright


In 1963, Fortas represented Clarence Earl Gideon
Clarence Earl Gideon
Clarence Earl Gideon was a poor drifter accused in a Florida state court of felony theft. His case resulted in the landmark U.S. Supreme Court decision Gideon v...

's appeal before the Supreme Court. Gideon, a poor man from Florida, had been convicted of breaking into a pool hall. He could not afford a lawyer, and none was provided for him. In its landmark ruling in Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...

, the Supreme Court held for Gideon, ruling that state courts are required under the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...

 to provide counsel in criminal cases for defendants unable to afford their own attorneys or lawyers.

Associate Justice of the Supreme Court


In 1965, Lyndon Johnson, then President, persuaded Supreme Court Justice Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...

 to resign his seat to become Ambassador to the United Nations
United States Ambassador to the United Nations
The United States Ambassador to the United Nations is the leader of the U.S. delegation, the U.S. Mission to the United Nations. The position is more formally known as the "Permanent Representative of the United States of America to the United Nations, with the rank and status of Ambassador...

 so that he could appoint Fortas, his longtime friend, to the Court. Johnson thought that some of his Great Society
Great Society
The Great Society was a set of domestic programs in the United States promoted by President Lyndon B. Johnson and fellow Democrats in Congress in the 1960s. Two main goals of the Great Society social reforms were the elimination of poverty and racial injustice...

 reforms could be ruled unconstitutional by the Court, and he felt that Fortas would let him know if that was to happen. Johnson and Fortas did collaborate while Fortas was a justice; Fortas co-wrote Johnson's 1966 State of the Union
State Of The Union
"State Of The Union" is the debut single from British singer-songwriter David Ford. It had previously been featured as a demo on his official website, before appearing as a track on a CD entitled "Apology Demos EP," only on sale at live shows....

 speech.

On the Court, Fortas was particularly concerned with children's rights
Children's rights
Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education,...

. Fortas dissented when the Court upheld some public intoxication laws.

In 1968, Fortas authored a book titled, Concerning Dissent and Civil Disobedience which was criticized by historian Howard Zinn
Howard Zinn
Howard Zinn was an American historian, academic, author, playwright, and social activist. Before and during his tenure as a political science professor at Boston University from 1964-88 he wrote more than 20 books, which included his best-selling and influential A People's History of the United...

 in his book Disobedience and Democracy: Nine Fallacies on Law and Order.

Among Fortas's legal clerks were:
  • Walter B. Slocombe
    Walter B. Slocombe
    Walter Becker Slocombe is a former Under Secretary of Defense for Policy and was the Senior Advisor for Security and Defence to the Coalition Provisional Authority in Baghdad ....

    , future under-Secretary of Defense.

  • John L. Ray
    John L. Ray
    John L. Ray is a lawyer and Democratic politician in Washington, D.C. He was an at-large member of the Council of the District of Columbia from 1979 to 1997...

    , future lawyer, Democratic party politician in Washington, D.C., and at-large member of the Council of the District of Columbia
    Council of the District of Columbia
    The Council of the District of Columbia is the legislative branch of the local government of the District of Columbia. As permitted in the United States Constitution, the District is not part of any U.S. state and is instead overseen directly by the federal government...

    .

  • Martha A. Field, future Langdell Professor of Law at Harvard Law School. Noted scholar of constitutional law, family law, and issues bioethics.

Relationship with other justices


Fortas mostly had good working relations with his fellow justices, although they did worry that he talked to President Johnson too much.
Fortas clashed with fellow Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 during much of his time on the Court. The two had been friends since the 1930s, and Black helped Fortas's wife Agger accept his appointment to the Court. However, once both were on the Court, they disagreed about the manner in which the Constitution should be interpreted and found themselves on opposing sides in opinions most of the time. In 1968, a Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

 clerk called their feud "one of the most basic animosities of the Court".

Fortas's best relationship was with William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

, and was next-closest to William J. Brennan and Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

. Brennan's offices were in the chambers next to those of Fortas. Fortas's wife recalled that Fortas "loved Warren". Fortas called John Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...

 "one of my dearest friends, although we usually are on opposite sides of the issues here".

Approach to oral arguments


Fortas was critical of those justices (he specifically cited Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

) who frequently broke into attorneys' arguments to ask questions. As an attorney arguing before the Court, he had resented justices' intrusions, so as a justice himself he felt it best to let the lawyers give their arguments uninterrupted.

Children's and students' rights



During his time on the Court, Fortas led a revolution in U.S. juvenile justice, broadly extending the Court's logic on due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 rights and procedure to legal minors and overturning the existing paradigm of parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...

, in which the state had usurped the parental role. Authoring the majority decision in Kent v. United States (1966), the first Supreme Court case that evaluated a juvenile court procedure, Fortas suggested that the existing system might be "the worst of both worlds". At that time, the state was held to have a paternal interest in the child rather than a prosecutorial one, a concept that dispensed with the obligation to provide a child accused of a crime with the opportunity to make a defense. Yet the courts were empowered to decide, in the interests of the child, to have the child incarcerated for lengthy periods or otherwise severely punished.

Fortas elaborated on his critique the following year in the case of In re Gault
In Re Gault
In re Gault, 387 U.S. 1 , was a landmark U.S. Supreme Court decision that held that juveniles accused of crimes in a delinquency proceeding must be afforded many of the same due process rights as adults, such as the right to timely notification of the charges, the right to confront witnesses, the...

(1967). The case concerned a 15-year-old who had been sentenced to six years (until his majority) in Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...

's State Industrial School for making an obscene phone call to his neighbor. Had he been an adult the maximum punishment he could have received was a $50 fine or two months in jail. Fortas used the case to launch a ferocious attack on the juvenile justice system and parens patriae. His majority opinion was a landmark, extending the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 guarantees of right to sufficient notice, right to counsel, right to confrontation of witnesses, and right against self-incrimination to certain juvenile proceedings.

Two years later, Fortas authored another landmark in children's rights
Children's rights
Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education,...

 with the decision in the case of Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District, was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools...

, involving two high school students and one junior high school student who had been suspended for wearing black armbands to school to protest the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...

. Extending First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 rights to school students for the first time, Fortas wrote that "neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".

Epperson v. Arkansas


In 1968, Fortas convinced the court to accept the appeal of Little Rock Central High School teacher Sue Epperson who had challenged Arkansas' anti-evolution
Evolution
Evolution is any change across successive generations in the heritable characteristics of biological populations. Evolutionary processes give rise to diversity at every level of biological organisation, including species, individual organisms and molecules such as DNA and proteins.Life on Earth...

 law with the support of the state teachers union. Epperson had won the case, but the Arkansas Supreme Court
Arkansas Supreme Court
The Arkansas Supreme Court is the highest court in the U.S. state of Arkansas. Since 1925, it has consisted of a Chief Justice and six Associate Justices, and at times Special Justices are called upon in the absence of a regular justice...

 had overturned the ruling. Although the Court agreed quickly after hearing the case that the Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...

 ruling should be reversed, there was no consensus as to why, with most Justices favoring fairly narrow grounds. Fortas was the architect and author of the broader landmark majority opinion in Epperson v. Arkansas
Epperson v. Arkansas
Epperson v. Arkansas, 393 U.S. 97 , was a United States Supreme Court case that invalidated an Arkansas statute that prohibited the teaching of human evolution in the public schools...

that eventually emerged banning religiously-based creation
Creationism
Creationism is the religious beliefthat humanity, life, the Earth, and the universe are the creation of a supernatural being, most often referring to the Abrahamic god. As science developed from the 18th century onwards, various views developed which aimed to reconcile science with the Genesis...

 narratives from public school science curricula.

Presidential power


Fortas believed in an expanded executive branch and a less powerful legislative branch. He wrote: "The enormous growth of presidential power from FDR
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

 to Lyndon Johnson was a necessary and an inevitable adaptation of our constitutional system to national needs."

Nomination to be Chief Justice


When Chief Justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

 announced his retirement in June 1968, Johnson nominated Associate Justice Fortas to replace Warren as Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

. However, the Warren Court's form of jurisprudence had angered many conservative members of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

, and the nomination of Fortas provided the first opportunity for these senators to register their disenchantment with the direction of the Court; they planned to filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

 Fortas's nomination. Senate Judiciary Committee chair James Eastland
James Eastland
James Oliver Eastland was an American politician from Mississippi who briefly served in the United States Senate as a Democrat in 1941; and again from 1943 until his resignation December 27, 1978. From 1947 to 1978, he served alongside John Stennis, also a Democrat...

 told Johnson he "had never seen so much feeling against a man as against Fortas". Fortas was the first Chief Justice nominee ever to appear before the Senate, and he faced hostile questioning about his relationship with Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...

. Johnson had consulted with Fortas about political matters frequently while Fortas was on the Court.

American University payments


Fortas's acceptance of $15,000 for nine speaking engagements at the American University Law School
Washington College of Law
American University Washington College of Law is the law school of American University. It is located on Massachusetts Avenue in the Spring Valley neighborhood of northwest Washington. WCL is ranked 50th among law schools by US News and World Report...

 became a source of controversy. The money had not come from the university, but from private sources that represented business interests connected to 40 companies; Senator Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...

 raised the idea that cases involving these companies might come to the Court and Fortas might not be objective. While not illegal, the size of the fee raised much concern about the Court's insulation from private interests, especially as it was funded by Fortas's former clients and partners. The $15,000 represented more than 40% of a Supreme Court justice's salary and was seven times what any other American University seminar leader had ever been paid.

Cloture vote


Upon learning of this problem, President Johnson decided to help Fortas win a majority vote, but only as a face-saving measure, according to Johnson aide Joseph Califano:
The debate on Fortas's nomination had lasted for less than a week, led by Republicans and conservative southern Democrats, or so-called Dixiecrat
Dixiecrat
The States' Rights Democratic Party was a short-lived segregationist political party in the United States in 1948...

s. Several senators who opposed Fortas asserted at the time that they were not conducting a perpetual filibuster and were not trying to prevent a final up-or-down vote from occurring. The Senate web site now characterizes the debate as the first filibuster on a Supreme Court nominee.

In 1968, Senate rules required two-thirds of senators present to stop a debate (now 60% of the full Senate is needed). The 45 to 43 cloture vote to end the Fortas debate included 10 Republicans and 35 Democrats voting for cloture, and 24 Republicans and 19 Democrats voting against cloture. The 12 other senators, all Democrats, were absent.

The New York Times wrote of the 45 to 43 cloture roll call: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote." The next president, Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

, a Republican, would appoint Warren E. Burger as Chief Justice.

Resignation


Fortas remained on the bench, but in 1969, a new scandal arose. Fortas had accepted a $20,000 retainer from the family foundation of Wall Street
Wall Street
Wall Street refers to the financial district of New York City, named after and centered on the eight-block-long street running from Broadway to South Street on the East River in Lower Manhattan. Over time, the term has become a metonym for the financial markets of the United States as a whole, or...

 financier Louis Wolfson
Louis Wolfson
Louis Elwood Wolfson was a Wall Street financier and one of the first modern corporate raiders, labeled by Time Magazine as such in a 1956 article...

, a friend and former client, in January 1966. Fortas signed a contract with Wolfson's foundation; in return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life). Wolfson was under investigation for securities violations at the time and it is alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon; he did ask Fortas to help him secure a pardon from LBJ, which Fortas claimed that he did not do. Fortas recused himself from Wolfson's case when it came before the Court and had returned the retainer, but not until Wolfson had been indicted twice.

In 1970, after Fortas had resigned from the Court, Louis Wolfson surreptitiously taped a private telephone call with Fortas. The transcript of this call was disclosed by Wolfson's lawyer, Bud Fensterwald, to Washington Post reporter Bob Woodward
Bob Woodward
Robert Upshur Woodward is an American investigative journalist and non-fiction author. He has worked for The Washington Post since 1971 as a reporter, and is currently an associate editor of the Post....

 in 1977. The Washington Post subsequently published several excerpts from the transcript, including language suggesting that Fortas might have indeed spoken with LBJ about a pardon for Wolfson, but there is no evidence that this intervention was a quid pro quo rather than a voluntary intervention for a friend. Wolfson was convicted of violating federal securities laws later that year and spent time in prison.

The new Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

 administration became aware of the Wolfson deal when a Life reporter began investigating the story; FBI director J. Edgar Hoover
J. Edgar Hoover
John Edgar Hoover was the first Director of the Federal Bureau of Investigation of the United States. Appointed director of the Bureau of Investigation—predecessor to the FBI—in 1924, he was instrumental in founding the FBI in 1935, where he remained director until his death in 1972...

 also mentioned a "tax dodge" Fortas had entered into with other judges, and Nixon concluded Fortas should be "off of there". When Chief Justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

 was informed of the incident by the new Attorney General John N. Mitchell
John N. Mitchell
John Newton Mitchell was the Attorney General of the United States from 1969 to 1972 under President Richard Nixon...

, he persuaded Fortas to resign to protect the reputation of the Court and avoid lengthy impeachment
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....

 proceedings, which were in their preliminary stages; Fortas's judicial reputation was also affected by the previous Johnson consultation and American University scandals. Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 also urged Fortas to resign, but when Fortas said it would "kill" his wife, Black changed his mind and urged Fortas not to resign. Fortas eventually decided resignation would be best for him and for his wife's legal career, and told his colleagues. William J. Brennan later said, "We were just stunned." Fortas later said he "resigned to save Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

", another justice who was being investigated for a similar scandal at the same time.

President Nixon eventually appointed as his replacement Harry A. Blackmun, after the previous nominations of Clement F. Haynsworth and G. Harrold Carswell failed. The seat was vacant for nearly the entire 1969–70 term.

Later years


Rebuffed in the wake of his fall by the powerful Washington law firm he had founded, Fortas founded another firm, Fortas and Koven, and maintained a successful law practice until his death in 1982. However, his wife, Carolyn Agger, stayed at Fortas's original firm, in part due to the fact that Fortas had resigned in order to protect her job there. In the year following his resignation, he turned down an offer to publish his memoirs.

Founding the firm of Fortas & Koven in Washington, D.C., a year after his resignation, Fortas also kept two non-paying clients: Pablo Casals
Pablo Casals
Pau Casals i Defilló , known during his professional career as Pablo Casals, was a Spanish Catalan cellist and conductor. He is generally regarded as the pre-eminent cellist of the first half of the 20th century, and one of the greatest cellists of all time...

 and Lyndon Johnson, with whom he remained great friends and visited in Texas. Fortas was asked to donate his papers to Johnson's presidential library
Lyndon Baines Johnson Library and Museum
The Lyndon Baines Johnson Library and Museum is one of 13 presidential libraries administered by the National Archives and Records Administration. The library houses 45 million pages of historical documents, including the papers of Lyndon Baines Johnson and those of his close associates and others...

 by Lady Bird Johnson
Lady Bird Johnson
Claudia Alta "Lady Bird" Taylor Johnson was First Lady of the United States from 1963 to 1969 during the presidency of her husband Lyndon B. Johnson. Throughout her life, she was an advocate for beautification of the nation's cities and highways and conservation of natural resources and made that...

, but he replied that his correspondence with Johnson had always been kept in strictest confidence. According to his law partner Howard Koven, Fortas once consulted with Martin Scorsese
Martin Scorsese
Martin Charles Scorsese is an American film director, screenwriter, producer, actor, and film historian. In 1990 he founded The Film Foundation, a nonprofit organization dedicated to film preservation, and in 2007 he founded the World Cinema Foundation...

 on the legality of language Scorsese wanted to use in a movie.

A portrait of him was placed in Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...

 while he was still alive, underwritten by an anonymous donor. Fortas served as a longtime member of the board of directors of Carnegie Hall
Carnegie Hall
Carnegie Hall is a concert venue in Midtown Manhattan in New York City, United States, located at 881 Seventh Avenue, occupying the east stretch of Seventh Avenue between West 56th Street and West 57th Street, two blocks south of Central Park....

, including while he was on the Supreme Court. He also served on the board of the Kennedy Center since it opened in 1964.

The American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...

 revamped its rules as a result of the Wolfson affair, revising circumstances under which judges should not accept outside income.

In the course of his return to private practice, Fortas sometimes appeared before his former colleagues at the Supreme Court. On the first occasion he did so, his successor, Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...

, recalled that his eyes met Fortas's: "[Fortas] kind of nodded... I wondered what was going through his mind." When Blackmun later questioned Fortas if he remembered the encounter, Fortas said he would "never forget it". Blackmun thought Fortas's attitude toward the new justice was remarkable, not showing "an ounce of antagonism or resentment".

Fortas's memorial service was held at the Kennedy Center, with Isaac Stern
Isaac Stern
Isaac Stern was a Ukrainian-born violinist. He was renowned for his recordings and for discovering new musical talent.-Biography:Isaac Stern was born into a Jewish family in Kremenets, Ukraine. He was fourteen months old when his family moved to San Francisco...

 and Lady Bird Johnson
Lady Bird Johnson
Claudia Alta "Lady Bird" Taylor Johnson was First Lady of the United States from 1963 to 1969 during the presidency of her husband Lyndon B. Johnson. Throughout her life, she was an advocate for beautification of the nation's cities and highways and conservation of natural resources and made that...

 in attendance.

See also






External links