Abe Fortas

• Born: June 19, 1910
• Birthplace: Memphis, Tennessee
• Died: April 5, 1982
• Place of death: Washington, D.C.

Lawyer and U.S. Supreme Court justice (1965-1969)

Fortas was a gifted lawyer and a compromised jurist. As both advocate and judge, he advanced the cause of justice for juveniles, but, with frequent conflicts of interest, he made history as the first Supreme Court nominee to spark a Senate filibuster.

Early Life

Abe Fortas (ayb FOR-tahs) was born into an Orthodox Jewish family in Memphis, Tennessee. His parents, Woolfe Fortas and Rachel Berzansky, were from Eastern Europe: Woolfe was born in Russia and Rachel in Lithuania. The Fortases were living in Leeds, England, where they owned and managed a china store, when they decided to join Woolfe’s brother in Memphis, Tennessee. With three children, the family arrived in 1905 in Memphis, where they had two more children, Abe Fortas last. Woolfe, who renamed himself William, was a moderately successful businessman, and although he raised his children in an Orthodox household, he did so in an ethnically diverse neighborhood. Like his siblings, Fortas saw his religion as largely a matter of ritual. Music, in particular, the violin, was his passion. When his father died of cancer in 1930, Fortas found music to be a consolation and a source of income.

That same year, Fortas graduated first in his class from Southwestern College in Memphis, where he was a scholarship student. Generous financial aid also permitted Fortas to attend Yale Law School, where he was one of the youngest students and one of the only Jews. Fortas did well at Yale, graduating second in his class and garnering the attention of a professor, William O. Douglas, who mentored the younger man. Douglas left Yale around the time Fortas graduated in 1933, and although the law school offered Fortas a teaching position, he opted instead to follow Douglas into President Franklin D. Roosevelt’s New Deal administration. Fortas first worked part time in the Agricultural Adjustment Administration and then went to the Securities and Exchange Commission when Douglas secured a full-time position for him there.

In 1935, Fortas married Carolyn Eugenia Agger and moved with her back to New Haven, Connecticut, so that she could complete her law degree at Yale, where Fortas was reappointed to the faculty. In 1939 Fortas quit teaching altogether, taking a position as general counsel for the Public Works Administration. He continued his rise in the Roosevelt administration, finally becoming chief assistant to Secretary of the Interior Harold Ickes.

Life’s Work

In 1946, with the New Deal coming to an end, Fortas left government service to help set up a Washington law firm, Porter, Arnold, and Fortas, specializing in representation of corporate clients. Along with such lucrative work, Fortas also litigated a number of significant cases pro bono. Fortas defended foreign policy expert Owen Lattimore when the latter became a target of Senator Joseph McCarthy’s anti-Communist crusade. Fortas also represented appellants in some important lawsuits concerning individual liberties, such as Durham v. United States (1954), a circuit court case that liberalized the insanity defense, and Gideon v. Wainwright (1963), the Supreme Court decision extending the right to counsel to all criminal defendants in state courts.

Fortas continued his involvement in politics as well, helping to save Lyndon Johnson’s narrow victory in the 1948 Texas Democratic senatorial primary. From that time forward, the two men’s destinies were intertwined. When Johnson reached the White House in 1961, Fortas continued to be one of his closest advisers. For his part, Fortas enjoyed being close to power while at the same time continuing to reap the financial rewards of his lucrative private legal practice, and he declined Johnson’s 1964 offer to make him attorney general. The next year, however, Johnson forced Arthur Goldberg to step down from his role as associate justice of the Supreme Court, so that Johnson could nominate his friend Fortas to the High Court. Johnson did so—but without first obtaining Fortas’s consent.

Fortas was easily confirmed, and over the next three years he did a creditable job on the Court led by Chief Justice Earl Warren, usually voting with majority liberal bloc and distinguishing himself as an advocate for the rights of juvenile criminal defendants in opinions such as In re Gault (1967). In 1968, after Warren informed the president of his wish to retire, Johnson nominated his old friend Fortas as Warren’s replacement.

By this time, however, the Democrat Johnson was a lame duck, having announced his decision not to seek reelection. Republicans, sensing an opportunity to humiliate Johnson and to nominate one of their own as the next chief justice, tasted blood. Fortas was required once again to undergo the Senate Judiciary Committee vetting process, but he made a crucial mistake, appearing before the committee even though no sitting justice had ever before done so. He encountered enormous hostility from both Republicans and southern Democrats, fueled, some said, by anti-Semitism and by charges of cronyism that escalated to claims that in counseling the president while serving on the Supreme Court, Fortas had violated the separation-of-powers doctrine. The hearings unearthed other improper relationships as well as evidence of greed: Fortas had accepted a stipend—funded by friends and former clients—equal to 40 percent of his Court salary for teaching a summer course at American University in Washington.

In the end the committee recommended confirmation, but Fortas’s fate was sealed before his nomination reached the Senate floor, where it sparked the first filibuster in history of a Supreme Court nomination. The Senate never voted on Fortas, and he made history again in asking the president to withdraw his name from consideration. Fortas was the first candidate for chief justice to have been denied Senate approval since the mentally unstable John Rutledge was rejected in 1795.

Fortas’s return to his seat as an associate justice was also unprecedented, but he did not stay there long. A year later, Life magazine revealed that Fortas had accepted $200,000 to serve as a consultant to a charitable foundation set up by a former client who was under investigation for stock manipulation. Fortas later returned the money, but his reputation was shattered. With the likelihood of impeachment hanging over him and the newly elected administration of Republican Richard Nixon actively working against him, Fortas resigned from the Court on May 14, 1969.

Fortas then returned to private practice. When his old firm, Porter, Arnold, and Fortas, rejected him, he formed a new one, Fortas and Koven, while his wife remained at the renamed Arnold and Porter. Fortas’s new firm—combining, like the previous one, corporate and pro bono work—was a success, and Fortas even appeared on several occasions before his old colleagues on the Supreme Court.

Fortas died from a heart attack in 1982 in Washington, D.C. His memorial service was held at the Kennedy Center, where he had served on the board since it had opened in 1964.

Significance

Fortas, although undoubtedly a flawed and ultimately tragic figure, will be remembered for his legal achievements as well as for the improprieties and political miscalculations that ended his judicial career. He was, by all accounts, a brilliant lawyer, who devoted himself with equal fervor to corporate clients and indigent individuals. It was Fortas who helped change history by successfully representing the illiterate itinerant Clarence Gideon in Gideon’s seemingly quixotic search for justice in a system that had denied him benefit of counsel. Since then, a defendant who cannot afford a lawyer must be provided one at no cost. Fortas’s dedication to civil liberties continued when he served on the High Court, where he drafted such opinions as Tinker v. Des Moines Independent Community School District (1969), upholding high school students’ right to protest the war in Vietnam by wearing black armbands to school.

Bibliography

Covitz, Akiba J. “Divided Loyalties.” New Republic 233, no. 16 (October 17, 2005): 9. Argues Fortas was the last person elevated to the Court after enjoying a close relationship with a president.

Dean, John W. “Hatching a New Filibuster Precedent: The Senator from Utah’s Revisionist History.” Findlaw, May 6, 2005. Provocative opinion piece about the significance of the Fortas filibuster to the future of this divisive Senate rule.

Kalman, Laura. Abe Fortas: A Biography. New Haven, Conn.: Yale University Press, 1990. Comprehensive biography of the controversial lawyer and jurist draws on Fortas’s personal papers and on extensive interviews with family and associates.