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Justice Abe Fortas: Life as a Lawyer’s Lawyer and a Greek Tragedy

 

Abe Fortas had always wanted to be a Supreme Court Justice and, for as long as he had known him, his friend and benefactor had wanted to appoint him to the nation’s High Bench.

 

       It came as no surprise to anyone when, in July 1965, President Lyndon Johnson nominated his old friend, counselor and attorney to the Supreme Court. There were no questions about Abe Fortas’ qualifications and credentials. Fortas was a lawyer’s lawyer, possessed a wealth of government experience and enjoyed the admiration of the Supreme Court, which had appointed him to present arguments in landmark cases. He boasted enormous political capital and was a founding partner of one of the nation’s most prestigious, and courageous, law firms—Arnold, Fortas and Porter—that had won civil liberties cases in the era of Joseph McCarthy.

 

       In truth, Fortas was ambivalent about his nomination to the Supreme Court. A seat on the Court meant, for him, a substantial salary cut, an issue of considerable importance to Fortas and his wife, who moved easily in Washington social circles and enjoyed luxury. The consequent financial pressures led Justice Fortas to accept extravagant remuneration for lectures and board service which, while not illegal, raised ethical concerns. Those ethical breaches were compounded by his ill-advised role as an unofficial adviser to LBJ on the Vietnam War and ultimately compelled his resignation from the Court. After four years on the Court, on the heels of a magnificent legal career, Fortas had fallen from great heights. His precipitous fall from the peaks of power and prestige is a familiar story, one told thousands of years ago by Greek poets who wrote about tragedy.  

 

      By the summer of 1965, Fortas was as qualified as anyone in the country to serve on the Court. The son of Jewish immigrants, Fortas was born and raised in Memphis. Hard-working and brilliant, Fortas won scholarships to Southwestern College and Yale Law School, where he served as Editor-in-Chief of the Yale Law Journal. He was a protégé of Professor William O. Douglas, who became Chair of the Securities and Exchange Commission and subsequently was appointed to the Court by President Franklin D. Roosevelt. Douglas opened numerous doors in Washington for Fortas, who flourished in New Deal circles and became indispensable to Harold Ickes, Secretary of the Interior. As Undersecretary during World War II, Fortas fought against the internment of Japanese American citizens.

 

       After the war, Fortas joined forces with Thurman Arnold and Paul Porter, to create a powerful Washington, D.C.  firm that distinguished itself as a premiere defender of American civil liberties through representation of victims of McCarthyism. His work included defense of public employees attacked by McCarthy as security risks to the nation. Fortas’ firm also represented corporate interests that New Dealers consistently challenged. His practice was lucrative by every measure. By 1964, Fortas was earning more than $175,000 a year.

 

      Fortas was saluted by his peers as a brilliant legal strategist and courtroom advocate. The courts recognized his skills and rewarded him through the high honor of appointment to argue landmark cases, pro bono. In Durham v. United States (1954), he won a victory that broadened the insanity defense in criminal cases. In Gideon v. Wainwright (1963), made popular through Anthony Lewis’ best-selling book, “Gideon’s Trumpet,” and a movie by the same title, Fortas successfully argued for the establishment of a Sixth Amendment right to counsel for defendants too poor to hire their own attorneys in all state felony cases.

 

     By 1965, President Johnson was determined to nominate Fortas to the Supreme Court. Fortas had successfully represented then Congressman Johnson before the Court in 1948, in his disputed primary election for the U.S. Senate, which LBJ won. That victory, and other instances in which Fortas had ably counseled Johnson, was the beginning of an ill-fated relationship. Johnson was eager to repay Fortas’ long service and loyalty with a seat on the Court.

 

     Before Johnson could nominate Fortas, he needed to create a vacancy on the Court, which he did by convincing Justice Arthur Goldberg to resign his seat to become Ambassador to the United Nations. Goldberg was torn. He liked the Court and wanted to remain, but like so many others, he could not resist Johnson’s importuning, “your country needs you at the UN. I need you at the UN.” Goldberg told friends, who tried to persuade him to remain on the Court, “what can do you do when your president asks you to do something for your country?”

 

      With the “sudden” vacancy on the Supreme Court, Johnson nominated Fortas to fill it. Fortas feigned reluctance but accepted.  He was sworn in on October 4. He served nearly four years before resigning in 1969, the drama of which we consider next week. His story remains a cautionary tale.




David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.




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