Supreme Court Justice Abe Fortas Is Accused of Bribery

Date May 9, 1969

Abe Fortas had been appointed associate justice of the United States by President Lyndon B. Johnson in 1965 and in 1968 was nominated for chief justice. The following year, a Life magazine article accused him of questionable associations with financier Louis Wolfson, who was under investigation for stock manipulation. Days later, the liberal Fortas resigned, opening the door to a conservative-leaning Court, which dominated Court rulings into the twenty-first century.

Locale Washington, D.C.

Key Figures

• Abe Fortas (1910-1982), associate justice of the United States, 1965-1969
• Louis Wolfson (1912-2007), American financier
• William G. Lambert (1920-1998), reporter
• John Mitchell (1913-1988), U.S. attorney general

Summary of Event

On May 9, 1969, Life magazine, a leading American periodical of the time, published the article “The Justice . . . and the Stock Manipulator” by Pulitzer Prize-winning reporter William G. Lambert. Lambert revealed that a relationship had developed between the controversial financier Louis Wolfson and Abe Fortas, an associate justice of the United States. Lambert wrote that their dealings began after Fortas was selected for the U.S. Supreme Court. In 1966, under signed contract between Wolfson and Fortas, Wolfson was to pay Fortas twenty thousand dollars per year, ostensibly to serve as a consultant to a foundation established by Wolfson.

Lambert said that Wolfson and Fortas had conversed even after Wolfson was facing federal charges of illegal stock manipulation. Furthermore, Wolfson had been dropping Fortas’s name in certain circles, implying that his relationship with the justice would lead to the cessation of charges (it did not). The article did note that after Wolfson’s indictment (and eleven months after receiving payment), Fortas returned the money and withdrew from his position as adviser. Lambert added that Life had uncovered no evidence that Fortas had intervened in Wolfson’s criminal case. Indeed, Fortas had recused himself from the Court’s consideration of whether to accept an appeal of Wolfson’s conviction. Caveats aside, Lambert wrote that their relationship was “questionable.”

The article’s impact may not have been as serious had it not been for other concerns that would magnify its importance. In the previous year, Fortas, a sitting justice at the time, was nominated for the position of chief justice by U.S. president Lyndon B. Johnson. Because Johnson was a lame duck president, and because many senators were hopeful that the next president would be more conservative, hearings surrounding the nomination of the liberal Fortas were extensive. Moreover, the hearings uncovered evidence that could raise questions about Fortas’s judgment and character. While still a justice, Fortas continued to serve as a behind-the-scenes adviser to President Johnson on many issues, including the very unpopular Vietnam War. Many considered this a violation of the separation of powers doctrine, and indeed it was, regardless of Fortas and Johnson being long-time friends and political allies. In addition, while on the Court, Fortas had conducted a seminar at American University Law School for fifteen thousand dollars, a sizeable sum that had been raised from former clients through a partner in his former law firm. Both of these activities suggested to many that Fortas, who had been a powerful Washington, D.C., attorney and political insider, did not have the purity of character associated with a Supreme Court justice.

A number of conservative senators also used these hearings to attack many of the rulings (only some of which Fortas had joined) made by the Warren Court. Fortas’s nomination for chief justice stalled on the floor of the U.S. Senate, and he ultimately asked that this nomination be withdrawn. However, he still retained his position on the Court as an associate justice.

After Richard Nixon had become president—with John Mitchell as Nixon’s attorney general—the Department of Justice (DOJ) stepped up its investigation of Wolfson and his relationship with Fortas. According to a leak from Mitchell to the press, the DOJ also investigated Fortas’s wife, Carolyn Agger, a distinguished Washington tax attorney. That investigation uncovered the original contract between Wolfson and Fortas, showing a clause that the twenty thousand dollars would be paid to Fortas over his lifetime and to Agger in case of her husband’s death, a fact unknown to Life reporter Lambert. After obtaining this information and after conferring with top DOJ advisers, Mitchell made an appointment with Chief Justice Earl Warren and informed him, in early May, of the damaging allegations and evidence against Fortas. Warren was appalled by the revelations.

In no time news of the secret meeting between the chief justice and the attorney general became public. In what appeared to be a concerted effort by the Nixon administration to increase the pressure on Fortas, hints of further questionable dealings also were leaked to the media. Soon, many in the press were calling for Fortas’s resignation, as were a number of elected officials, including many prominent Democratic senators. Fortas conferred with friends and colleagues, including Justice Hugo L. Black, who suggested to Fortas he resign, for his own good and for the good of the Court. Another person who apparently had a strong impact on Fortas was Clark Clifford, a friend, fellow Johnson intimate, and fellow Washington insider. Clifford, according to one source, told Fortas the attacks would continue and that it would be in his best interest to resign.

On May 14, Fortas submitted a four-page letter of resignation to Warren, detailing the nature of his relationship with Wolfson but admitting no wrongdoing. He was resigning, he asserted, because he wanted to protect the image of the Court. His letter of resignation to Nixon, in stark contrast, was only two sentences long.

After resigning, Fortas reentered private law practice, though he did not rejoin the prestigious firm of Arnold, Fortas, & Porter, which he cofounded. In March, 1982, he argued a case before the very Court from which he had resigned. Shortly thereafter, on April 5, he suffered a severe heart attack and died.

Impact

Fortas’s resignation created a vacancy on the Court that was filled by a conservative jurist. In the closely divided Court of 1969, this change in its ideological makeup affected its later decisions. President Nixon sought to fill the vacancy by nominating Clement F. Haynsworth, a relative conservative from South Carolina, who at the time was serving as a judge on the Fourth Circuit Court of Appeals. Haynsworth’s nomination was turned down by the Democrat-controlled Senate, ostensibly because of his participation in a case where he had a conflict of interest. After his defeat, the president nominated another southerner, G. Harold Carswell, who also was not confirmed. These battles over the nominations added to an already low trust in government held by the American people at the time and increased the high levels of rancor existing in the nation’s capital.

It was Nixon’s third nominee, Harry A. Blackmun of Minnesota, who was confirmed, and he served from 1970 to 1994. Although considered a moderate, it is likely that Blackmun had more conservative rulings than Fortas would have if he had remained on the Court. Blackmun’s tenure, along with that of Warren E. Burger, who served as chief justice from 1969 to 1986 and took the position that Johnson hoped would go to his friend, Fortas, marked the beginning of a more conservative trend in Court rulings, one that extended into the twenty-first century. Fortas’s resignation opened the door to this trend.

Bibliography

Atkinson, David N. Leaving the Bench: Supreme Court Justices at the End. Lawrence: University Press of Kansas, 1999. An interesting book that describes the circumstances under which various justices, including Fortas, left the bench.

Cray, Ed. Chief Justice. New York: Simon & Schuster, 1997. A good biography of Chief Justice Earl Warren, which includes discussion of Warren’s role in Fortas’s resignation from the U.S. Supreme Court.

Kalman, Laura. Abe Fortas: A Biography. New Haven, Conn.: Yale University Press, 1990. The definitive biography of Fortas, one which covers his whole life.

Lambert, William. “The Justice . . . and the Stock Manipulator.” Life, May 9, 1969. The magazine article that started the scandal and forced Fortas to resign from the U.S. Supreme Court.

Shogan, Robert. A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court. Indianapolis, Ind.: Bobbs-Merrill, 1972. A balanced account of the scandal, written soon after it took place.