This Day in Jewish History

1982: A Flawed U.S. Supreme Court Justice Dies

Justice Abe Fortas was a brilliant and progressive lawyer who was unable to distance himself sufficiently from power or resist his own desires for financial gain.

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Former U.S. Supreme Court Justice Abe Fortas died on April 5, 1982, at the age of 71. Fortas was the fifth Jew to serve on the court, and the only one of them to resign in scandal.

Abraham Fortas was born June 19, 1910, in Memphis, Tennessee, the youngest of five children in an observant Jewish family. His father, a cabinetmaker, had immigrated from England.

Fortas attended college in his hometown and then Yale Law School, where he was editor of the law review. He then taught at Yale, before serving in a number of positions with the U.S. government. In 1946 he and Thurman Arnold founded a law firm in Washington, D.C. (today it is the giant firm Arnold and Porter), where his clients included Lyndon Johnson, who asked Fortas to help him refute vote-tampering charges in his run for the U.S. Senate in Texas in 1948. Other clients included the Chinese studies scholar Owen Lattimore, accused by Sen. Joseph McCarthy of being a Russian spy, and Clarence Earl Gideon, whose case, which reached the Supreme Court, established the precedent guaranteeing legal counsel for indigent criminal defendants.

The beginning of Fortas’ downfall came in 1964, when his friend and client, Lyndon B. Johnson, now the president, decided he needed Fortas on the Supreme Court. Johnson feared that some of his social reforms, known collectively as the “Great Society” measures, would be overturned and wanted an insider at the top court who could keep him informed of developments there. Johnson persuaded Arthur Goldberg, who had held the “Jewish seat” on the court since 1962, to resign his position and to accept nomination as ambassador to the United Nations. In his place on the court, Johnson named a reluctant Fortas (who had earlier turned down an offer to become attorney general), whom the president informed of his decision only moments before announcing it before the press.

In his tenure on the court, Fortas wrote landmark decisions in several cases that helped establish juvenile rights before the law, overturning a number of state laws that didn’t extend the same constitutional rights to children guaranteed to adults.

Fortas continued his dialogue with Johnson while on the court, often consulting with him on political matters. This became a public issue in 1968, when Johnson nominated him to succeed Earl Warren as chief justice of the court. In hostile hearings before the Senate Judiciary Committee, Fortas’ acceptance of a large speaking fee, paid by private corporations, for a series of lectures at American University, also became an issue of contention. In the end, after conservative senators conducted a filibuster to delay a vote on the nomination, Fortas asked Johnson to withdraw his name from consideration.

Fortas continued at the court until the following year. By then Richard Nixon was president, and he was determined to remove Fortas from his position. When it was revealed that Fortas had an arrangement with the family foundation of a former client, Louis Wolfson, a Wall Street financier, for an annual cash retainer to continue for his wife even after his death, Fortas came under pressure from some of his colleagues to resign from the court. There was some evidence that the businessman expected Fortas’ help in arranging a presidential pardon for criminal charges he faced. (Wolfson did not receive a pardon, and did spend time in prison after being convicted.)

Although Fortas initially resisted – he feared the damage his resignation would do to his wife, both personally and to her legal career – he eventually decided to leave the court, resigning on May 14, 1969. When Johnson heard the news, he felt personally responsible, saying, “I made him take the justiceship. In that way, I ruined his life."

With the departure of Fortas from the court, the “Jewish seat” remained unfilled until the swearing-in of Ruth Bader Ginsburg, in 1993.

Arnold & Porter rebuffed a request by Fortas to return to his old firm, although his wife, Carolyn Agger, continued to work there. For his part, Fortas started a new firm, in Washington, where he continued to practice law until his death. He turned down a publisher’s offer to bring out his memoirs, and when Lyndon Johnson’s widow asked him to donate his correspondence with the late president (Johnson died in 1973) to the Johnson presidential library, he refused, citing the need to maintain lawyer-client confidentiality.

In the years following his death, Fortas has been the subject of several biographies. He is depicted as a tragically flawed figure – a brilliant and progressive lawyer who was unable to distance himself sufficiently from power or to resist his own desires for financial gain. He also was in part a victim of political processes that were pushing the Supreme Court in a conservative direction, after the years of the progressive Warren court. Once Richard Nixon, with the assistance of FBI director J. Edgar Hoover, had decided that Fortas had to go, there was little likelihood that he would be able to save himself.