Fortas, Abraham ("Abe")

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FORTAS, Abraham ("Abe")

(b. 19 June 1910 in Memphis, Tennessee; d. 5 April 1982 in Washington, D.C.), leading civil libertarian who served as an associate justice on the U.S. Supreme Court from 1965 to 1969, until charges of misdeeds forced him to resign.

Fortas, the youngest of five children of William Fortas, a cabinetmaker, and Ray Berson, was raised in Memphis. His parents, Orthodox Jews, had emigrated from England and operated a small shop in one of the city's poorer sections. At the age of fifteen, Fortas graduated second in his class from a Memphis high school, earning an academic scholarship to Southwestern College (now Rhodes College), a Presbyterian-sponsored institution in his hometown. Graduating at the top of his class with a bachelor's degree in 1930, he was offered scholarships from both Harvard and Yale law schools. Fortas opted for Yale because its monthly stipend was more generous than that of Harvard. Named editor of the prestigious Yale Law Journal in his final year of law school, Fortas graduated second in his class with a law degree in 1933.

Fortas remained at Yale for the next four years as a teacher. During this period he also worked part-time for the Securities and Exchange Commission (SEC), where he established a close relationship with William O. Douglas, another future justice of the U.S. Supreme Court. In July 1935 Fortas married Carolyn Eugenia Agger, whom he had met while he was a student at Yale. He left Yale in 1937 and joined the SEC full-time. He later took a position with the Public Works Administration and then served as undersecretary in the U.S. Department of the Interior from 1942 to 1946.

Having developed a network of valuable New Deal (social and economic reforms introduced in the 1930s by Franklin D. Roosevelt) contacts, Fortas left government service in 1946 to join his former Yale law professor Thurman Arnold as a partner in the new firm of Arnold, Fortas and Porter. Although his specialty was corporate law, Fortas also was interested in criminal law, particularly in the rights of criminals. In this arena, one of his more high-profile cases was Gideon v. Wainwright (1963), in which he argued successfully before the U.S. Supreme Court for the right to counsel of criminal defendants in felony cases, even at public cost. In 1948 Fortas defended the Texas congressman Lyndon B. Johnson in a challenge to his eighty-four-vote victory in the Democratic senatorial primary, winning a victory for the Texan before the Supreme Court. This marked the beginning of a close friendship between Fortas and Johnson.

When Johnson won the presidency in 1964, he offered Fortas the office of attorney general, but Fortas declined. The following year, however, Johnson created a vacancy on the Supreme Court by appointing associate justice Arthur J. Goldberg as U.S. ambassador to the United Nations. In late July 1965 the president nominated Fortas as Goldberg's replacement on the Court. In his memoirs, Johnson reflected on his reasons for naming Fortas: "I was confident that the man would be a brilliant and able jurist.… He had the strength of character to stand up for his own convictions, and he was a humanitarian." Another factor in Johnson's choice of Fortas was his desire to continue the tradition of the Court's so-called Jewish seat, which had begun with the appointment of Justice Louis Brandeis in 1916 and most recently had been occupied by Goldberg. Despite the fact that he had not yet fully agreed to the appointment, Fortas was confirmed by a voice vote in the Senate on 11 August 1965.

Fortas was well established as a civil libertarian long before his appointment to the Supreme Court, his reputation having been forever secured by his involvement in Gideon v. Wainwright. In fact, the Supreme Court had appointed him as counsel for the indigent Clarence Early Gideon in the case that set the precedent for the right to counsel in almost all criminal cases. Given his background, Fortas fit in exceptionally well with the prevailing liberal temperament of the Warren Court. A number of the decisions that Fortas supported on the Court involved the expansion of individual and civil rights. In Miranda v. Arizona (1996), which led to the requirement that law enforcement officers inform suspects of their constitutional rights before they could be questioned, Fortas cast the fifth and deciding vote.

Fortas wrote the majority opinion for the Supreme Court decision in In re Gault (1967), which guaranteed juveniles the right to counsel and protection against self-incrimination. In his opinion, Fortas observed: "There are rights granted to adults which are withheld from juveniles. Under our Constitution, the condition of being a boy does not justify a kangaroo court." In Tinker v. Des Moines Independent School District (1969), the Court found that a prohibition against passive protest by high school students (namely the wearing of black arm bands in protest of the Vietnam War) violated the students' constitutional right to freedom of expression. According to the majority opinion, written by Fortas, "free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact." Freedom of expression, Fortas observed, would not really exist if it were a right that could be exercised only in an area "that a benevolent government has provided as a safe haven for crackpots."

Fortas did break with his liberal brethren on the Court in questions involving antitrust law. Although his views generally were very much in line with those of Goldberg, his predecessor on the bench, Fortas expressed far less skepticism about the machinations of big business, particularly in the realm of mergers and acquisitions. In 1968 Fortas released Concerning Dissent and Civil Disobedience, which provides perhaps the clearest insight into the jurist's views of American justice.

The beginning of the end for Fortas came with his June 1968 nomination by President Johnson to replace retiring Chief Justice Earl Warren. Conservative Republicans and Democrats alike opposed the nomination, charging that Johnson, a "lame duck" who already had announced that he would not run for reelection, was trying to pack the court with liberals before he left office. During the opening round of hearings on the Fortas nomination, it was revealed that the associate justice had accepted $15,000 for teaching a nine-week course at American University Law School during the summer of 1968. Reportedly, a former law partner of Fortas's had raised the fee from five wealthy business executives. Further imperiling his nomination was the revelation that Fortas had counseled Johnson on national policy after he had taken his position on the Court. Critics of the nomination argued that Fortas lacked the "sense of propriety" to be expected of a chief justice. Opponents began a filibuster in the Senate to block the confirmation of Fortas as chief justice. On 1 October 1968, shortly after the Senate was unable to close the debate (and thus end the filibuster by asking for a vote), Fortas asked that his name be withdrawn from consideration.

Seven months later, in May 1969, a report in Life magazine charged that Fortas in 1966 had received a payment of $20,000 from the family foundation of Louis Wolfson, who later was indicted and imprisoned for selling unregistered securities. The payment, which eventually was returned, was to be the first in a series of annual payments to Fortas for services rendered to the Wolfson Foundation. Amid talk of possible impeachment proceedings, Fortas resigned on 14 May 1969, "for the good of the Court," although he admitted no wrongdoing. Fortas returned to private practice in Washington. He and wife continued to live in their Georgetown town house, spending summers at their vacation home in Connecticut. Fortas died in Washington of a ruptured aorta.

Looking back on Fortas's short tenure on the high court, author Henry J. Abraham, one of the country's foremost experts on constitutional law, wrote: "Not even Fortas's most advanced detractors would deny his uncanny ability, towering intellect, indeed brilliance. It is a pity [that] by his ill-conceived, arrogantly thoughtless, downright stupid, off-the-bench actions" it became necessary for him to resign after only a few short years on the high court. According to Abraham, Fortas had shown himself to be a dedicated libertarian in the arena of fundamental human rights. Abraham likened Fortas, at least in that respect, to Goldberg. "But Fortas's promising career was to be cut short by a combination of political power plays and personal greed," Abraham concluded.

Although it has been to some degree overshadowed by the circumstances of his fall from grace, the lasting contribution of Fortas remains his steadfast defense of individual rights. From his inspired defense of Clarence Earl Gideon in the landmark case of Gideon v. Wainwright, through his votes in such Supreme Court cases as Miranda v. Arizona, In re Gault, and Tinke rv. Des Moines Independent Community School District, Fortas worked tirelessly to expand the civil rights of all Americans.

A biography of Fortas is Laura Kalman, Abe Fortas: A Biography (1992). Readers may find greater insight into the life of Fortas and his years on the Supreme Court in Robert Shogan, A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (1972), and Bruce Allen Murphy, Fortas: The Rise and Ruin of a Supreme Court Justice (1988). Articles on Fortas include Fred P. Graham, "The Many-Sided Justice Fortas" (4 June 1967), and Fred Rodell, "The Complexities of Mr. Justice Fortas" (28 July 1968), both from the New York Times Magazine. An obituary is in the New York Times (7 Apr. 1982).

Don Amerman

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