Fortas, Abe (b. Memphis, Tenn., 19 June 1910; d. Washington, D.C., 5 Apr. 1982; cremated), associate justice, 1965–1969. The son of immigrant Jews, Fortas won scholarships to Southwestern College and Yale Law School. Arriving in New Haven during the heyday of legal realism, Fortas learned to treat law as a tool of social policy and became the protégé of Thurman Arnold and William O.
Douglas. Fortas served as editor in chief of the
Yale Law Journal and stood second in his class when he graduated in 1933.
Fortas became a New Dealer and joined the Agricultural Adjustment Administration. In 1935, he married Carolyn Agger, and the couple moved to New Haven so she could attend Yale Law School. Fortas taught there and commuted to Washington to work with Douglas at the Securities and Exchange Commission until she graduated. In 1939, Fortas joined the Department of Interior and made himself indispensable to the department's irascible secretary, Harold Ickes. As under secretary during World War II, Fortas supported land reform, opposed the imposition of martial law in Hawaii and fought the internment of Japanese‐Americans. Critics questioned his tactics, but few doubted his efficacy.
With other New Dealers, Fortas realized his expertise in interpreting governmental regulations could prove lucrative at war's end. Fortas established a law firm in Washington with Thurman Arnold and Paul Porter and began representing the corporate interests New Dealers had once attacked. Yet few lawyers more vigilantly protected
civil liberties during the postwar Red Scare than Fortas, who defended Owen Lattimore and other victims of McCarthyism. Later, he successfully argued two landmark pro bono cases:
Durham v. United States (1954), which updated the legal definition of
insanity; and
Gideon v. Wainwright (1963), which established a right to
counsel in all state felony cases. A brilliant legal strategist, Fortas was a great courtroom advocate and was considered a “lawyer's lawyer.” As managing partner of Arnold, Fortas & Porter, Fortas was disliked by many associates who found him cold, but he built it into one of Washington's most successful firms and was earning nearly $175,000 annually by 1964.
By that time he had become one of President Lyndon B. Johnson's most trusted advisers. The loud, crude politician and the quiet lawyer who loved chamber music seemed an odd couple, but Fortas had successfully defended Johnson in his disputed 1948 primary election for senator and proved his loyalty repeatedly afterwards. To reward his friend, Johnson engineered Arthur
Goldberg's departure from the Court in 1965 and offered Fortas the vacancy. Fortas initially demurred. Both he and Agger, who had joined his firm, feared the salary cut; and the firm needed him. But Fortas wanted the job, and Johnson insisted he take it.
As a justice, Fortas shared the Warren Court majority's commitment to expanding civil liberties and civil rights. His two most important opinions involved children:
In re Gault (1967) extended to juvenile offenders many due process protections previously reserved for adults; and in
Tinker v. Des Moines Independent Community School District (1969), Fortas insisted on students' right to engage in nondisruptive protest and to express their opposition to the
Vietnam War by wearing black armbands to school. With his support, the Court issued
Miranda v. Arizona (1966), upheld the
Voting Rights Act of 1965, invalidated the
poll tax, and insisted on legislative reapportionment. He sided with the Court's majority against big business and wrote one of the Warren Court's most radical antitrust opinions,
U.
S. v.
Arnold, Schwinn and Company (1967). Unlike the majority, however, Fortas despised the press and sought unsuccessfully to subordinate
First Amendment freedoms to the right to
privacy in his dissent in
Time, Inc. v. Hill (1967). Fortas was capable of writing well‐crafted opinions, such as
Epperson v. Arkansas (1968), in which he struck down a state statute prohibiting the teaching of evolution. More frequently, however, his opinions reflected a concern for social policy over legal precedent. His tendency to interpret the Due Process Clause as a broad guarantee of fairness enraged Hugo
Black, but most of his brethren applauded his activism.
Like Black, however, they were dismayed by Fortas's continuing closeness to Johnson. Because he was restless in the cloistered environs of the Court and could not resist Johnson's entreaties, Fortas became involved in the divisive issues that destroyed his friend's presidency. He strongly advocated American intervention in Vietnam and advised Johnson to send troops into riot‐torn Detroit (See
Extrajudicial Activities).
When Chief Justice Earl
Warren resigned in 1968, Johnson nominated Fortas for the position. Senators used Fortas's confirmation hearings as a forum for claiming that the Warren Court's protection of individual rights had aided criminals and damaged the state. Though Fortas downplayed his relationship with Johnson and noted that justices had long counseled presidents, opponents also charged that Fortas had violated the principle of “
separation of powers.” Johnson, who had announced he would not seek reelection, could do little for Fortas. The nomination was already doomed when senators learned that Fortas, who was dissatisfied with his salary, had accepted fifteen thousand dollars raised by Paul Porter from the justice's friends and former clients for teaching a summer course at American University, an arrangement many considered improper. Republicans and conservative southern Democrats launched a filibuster, and the nomination was withdrawn at Fortas's request.
A year later Fortas's financial dealings came under renewed scrutiny when
Life magazine revealed that he had accepted an honorarium for serving on a charitable foundation headed by a former client. Fortas resigned from the Court in disgrace (See
Fortas Resignation). When his old firm refused to take him back, he opened a small firm, where he again established a flourishing practice combining corporate law with pro bono work. He did not have the time or temperament to become a great justice, but he was a great lawyer.
Bibliography
Laura Kalman , Abe Fortas (1990).
Bruce Murphy , Fortas: The Rise and Ruin of a Supreme Court Justice (1988).
Laura Kalman
