Abe Fortas

Fortas was known in Washington circles to have a serious interest in psychiatry, still a controversial subject at the time. In 1953, this expertise led to his appointment to represent the indigent Monte W. Durham, whose insanity defense had been rejected at trial two years earlier, before a U.S. Court of Appeals.[16]

Durham's defense had been denied because the District Court had applied the M'Naghten rules, requiring that the defense prove the accused did not know the difference between right and wrong for an insanity plea to be accepted. Adopted by the British House of Lords in 1843, generations before the origins of modern psychiatry, this test was still in common use in American courts over a century later.

The effect of this standard was to exclude psychiatric and psychological testimony almost entirely from the legal process. In a critical turning point for American criminal law, the Court of Appeals accepted Fortas's call to abandon the M'Naghten Rule and to allow for testimony and evidence regarding the defendant's mental state.[17]

In 1963, Fortas represented Clarence Earl Gideon in his appeal before the Supreme Court. Gideon had been convicted by a Florida court of breaking into a pool hall. He could not afford a lawyer, and none was provided for him when he asked for one at trial. In its landmark ruling in Gideon v. Wainwright, the Supreme Court held for Gideon, ruling that state courts are required under the Sixth Amendment to provide counsel in criminal cases for defendants unable to afford their own.[18][19] Fortas's former Yale Law School professor, longtime friend and future Supreme Court colleague, William O. Douglas praised his argument as "probably the best single legal argument" in Douglas's time on the court.[20]

Fortas had mostly good working relations with his fellow justices, although they worried that he talked to President Johnson too much. Fortas clashed with his fellow Associate Justice Hugo Black during much of his time on the Court. The two had been friends since the 1930s, and Black helped convince Fortas's wife, Carolyn Agger, to consent to his appointment to the Supreme Court. However, once both men were on the Court, they disagreed about the manner in which the Constitution should be interpreted, finding themselves on opposing sides of the Court's opinions most of the time. In 1968, a Warren clerk called their feud "one of the most basic animosities of the Court".[3]

Fortas's best relationship was with William O. Douglas, his former law professor at Yale. Fortas was also close to Associate Justice William J. Brennan and Chief Justice Earl Warren. Brennan's offices were in the chambers next to those of Fortas. Fortas's wife recalled that Fortas "loved Warren".[3]

Fortas called fellow associate justice John Marshall Harlan II "one of my dearest friends, although we usually are on opposite sides of the issues here."[3]

In 1967, Fortas and Douglas dissented in the 5–4 decision Fortson v. Morris, which cleared the path for the Georgia State Legislature to choose the Governor of Georgia in the deadlocked Georgia gubernatorial election of 1966 between the Democrat Lester Maddox and the Republican Howard Callaway. Fortas said that the State Constitution of 1824, allowing the legislature to choose the governor if no one wins a majority in the general election, was at odds with the equal protection clause of the 14th Amendment to the U.S. Constitution:

"If the voting right is to mean anything, it certainly must be protected against the possibility that the victory will go to the loser."[29]

In this case, Maddox trailed Callaway by about 3,000 votes. Justice Black took the strict constructionist view that the U.S. Constitution does not dictate how a state must choose its governor:

"Our business is not to write the laws to fit the day. Our task is to interpret the Constitution."[30]

Fortas was critical of justices (he specifically cited Thurgood Marshall) who frequently broke into attorneys' arguments to ask questions.[3] As an attorney arguing before the Court, he had resented intrusions by the justices and so as a justice himself, he felt it best to let the lawyers give their arguments uninterrupted.[3]

Abe Fortas in 1968

During his time on the Court, Fortas led a revolution in US juvenile justice, broadly extending the Court's logic on due process rights and procedure to legal minors and overturning the existing paradigm of parens patriae in which the state had usurped the parental role. Writing the majority decision in Kent v. United States (1966), the first Supreme Court case that evaluated a juvenile court procedure, Fortas suggested that the existing system might be "the worst of both worlds."[3]

At that time, the state was held to have a paternal interest in the child rather than a prosecutorial one, a concept that dispensed with the obligation to provide a child accused of a crime with the opportunity to make a defense. Still, courts were empowered to decide, in the interests of the child, to have the child incarcerated for lengthy periods or otherwise severely punished.

Fortas elaborated on his critique the following year in the case of In re Gault (1967). The case concerned a 15-year-old who had been sentenced to almost six years (until his 21st birthday) in the Arizona State Industrial School for making an obscene phone call to his neighbor. Had he been an adult, the maximum punishment he could have received was a $50.00 fine or two months in jail. Fortas used the case to launch a ferocious attack on the juvenile justice system and parens patriae. His majority opinion was a landmark, extending the Fourteenth Amendment's guarantees of right to sufficient notice, right to counsel, right to confrontation of witnesses, and right against self-incrimination to certain juvenile proceedings.[3]

Two years later, Fortas wrote another landmark in children's rights with the decision in the case of Tinker v. Des Moines Independent Community School District (1969), involving two high school students and one junior high school student, who had been suspended for wearing black armbands to school to protest the Vietnam War. Extending First Amendment rights to school students for the first time, Fortas wrote that neither "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".

In 1968, Fortas persuaded the court to accept the appeal of Little Rock Central High School teacher Sue Epperson who had challenged Arkansas's anti-evolution law, with the support of the state teachers union. Epperson had won the case, but the Arkansas Supreme Court had overturned the ruling. Although the Court agreed quickly after hearing the case that the Arkansas ruling should be reversed, there was no consensus as to why, most Justices favoring fairly narrow grounds. Fortas was the architect and the author of the broader landmark majority opinion that emerged in Epperson v. Arkansas, banning religiously based creation narratives from public school science curricula.[3]

Fortas believed in an expanded executive branch and a less powerful legislative branch. He wrote: "The enormous growth of presidential power from Franklin D. Roosevelt to Lyndon Johnson was a necessary and an inevitable adaptation of our constitutional system to national needs."[3]

On June 26, 1968, Johnson nominated Fortas as Chief Justice of the United States,[21] to succeed Earl Warren, who had submitted his resignation effective with the confirmation of a successor.[31] Anticipating that conservative members of the Senate would have concerns about Fortas's liberal opinions, Johnson simultaneously announced that he would fill the vacancy created by Fortas's elevation with United States Court of Appeals for the Fifth Circuit Judge Homer Thornberry of Texas.[32] The propriety of the coordinated resignation-nomination on the eve of the November presidential election was called into question by Republican candidate Richard Nixon and the media.[31] By the time the Judiciary Committee opened hearings on the nomination on July 11, bipartisan opposition to the nomination (among Republicans and Southern Democrats) had become well organized.[25] Fortas was the first sitting associate justice, nominated for chief justice, ever to appear before the Senate.[32] He underwent four days of questioning about his legal career, judicial philosophy, and his relationship with President Johnson.[25] Judiciary Committee chairman James Eastland, a Missippippi segregationist, told Johnson he "had never seen so much feeling against a man as against Fortas".[3]

Antisemitism likely played a role in the confirmation battle. Afterward, Eastland reportedly said "After [Thurgood] Marshall, I could not go back to Mississippi if a Jewish chief justice swore in the next president."[33] The National Socialist White People's Party undertook a phone campaign that summer, condemning Fortas as a "despicable Jew with a 'red' record that smells to high heaven." Such attacks were soundly condemned by most senators. Even so, the White House began alerting the press to growing antisemitic opposition against Fortas, and used the issue to garner support for him in the Senate.[34] Fortas himself called the effort to defeat his nomination, "anti-Negro, anti-liberal, anti-civil rights, [and] anti-Semitic."[35]

Fortas's acceptance of $15,000 for nine speaking engagements at American University's Washington College of Law became a source of controversy.[27] The money had come, not from the university, but from private sources that represented business interests connected to 40 companies; Senator Strom Thurmond raised the idea that cases involving these companies might come to the Court, and Fortas might not be objective.[36] While the fee itself was legal, the size of the fee raised much concern about the Court's insulation from private interests, especially as the speaking fee had been funded by former legal clients and partners of Fortas. The $15,000 represented more than 40 percent of a Supreme Court justice's salary at the time, and was seven times what any other American University seminar leader had ever been paid.[36]

Thurmond also hammered at the issue of pornography. He condemned Fortas for voting with the majority to overturn obscenity laws dealing with pornographic films. Thurmond obtained some of the films in question and played them in the Senate building while the hearings were out of session.[27] These showings became known as the "Fortas Film Festival", and the association of Fortas with some of the films' strip-teases and especially the rape or homosexual sex depicted in one film, Flaming Creatures, was effective in tarnishing Fortas's image and disheartening his supporters.[37]

It was not until September 17 that the Judiciary Committee took a final vote on the nomination, reporting it favorably by an 11 to 6 vote to the full Senate.[21] Thurmond promised to filibuster, and when the senate debate began on September 25, Fortas's opponents restated every criticism they had earlier directed against Fortas, especially with regard to the issue of obscenity.[37] Johnson remained resolute in his support for his nominee, saying to an aide: "We won't withdraw the nomination. I won't do that to Abe."[38]

The debate lasted for four days, until a cloture motion to end the debate was made. The 45–43 vote in favor of cloture demonstrated that the nomination was in trouble. It was 14 votes short of the two-thirds majority (59 votes) needed to cut off debate and force a vote on the nomination.[25] (35 Democrats and 10 Republicans voted to end debate, while 24 Republicans and 19 Democrats voted to continue it.)[39] Although the vote suggested to Fortas's supporters that a slim majority favored confirmation, it effectively derailed the nomination.[40] In light of the slim prospect for a positive outcome, Johnson withdrew Fortas's nomination.[31]

News accounts at the time consistently described the Senate floor debate as a filibuster intended to prevent the nomination from reaching the floor, where a simple majority vote would have been enough for confirmation.[40][32] Republican Senator John Cornyn asserted in 2003, however, that several senators who opposed Fortas asserted at the time they were not conducting a perpetual filibuster and were not trying to prevent a final up-or-down vote from occurring.[41] Public debate occasionally still occurs over whether Fortas would have been confirmed in a simple majority vote. The Fortas nomination is seen as a harbinger of later filibusters of judicial nominees.[39]

Richard Nixon won the 1968 presidential election, and Johnson did not make another nomination before his term as president expired on January 20, 1969.[25] Earl Warren was succeeded as chief justice by Warren Burger, who was sworn into office on June 23, 1969.[1]

Fortas remained an associate justice, but in 1969, a new scandal arose. Fortas had accepted a US$20,000 (equivalent to $160,000 in 2022)[42] retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life).[43] However, in order to avoid apparent impropriety, Fortas returned the money the same year and received no further payments.[44] Fortas was not unique in receiving this type of funding and other Justices had similar arrangements. William O. Douglas, Fortas's mentor, likewise received funding from casino magnate Albert Parvin through his own foundation.[45] The American Bar Association revamped its rules as a result of the Wolfson affair, revising circumstances under which judges should not accept outside income.[46]

Wolfson was under investigation for securities violations at the time, and it was alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon. He asked Fortas to help him secure a pardon from Johnson, which Fortas claimed that he did not do. Fortas recused himself from Wolfson's case when it came before the Court.[47]

In May 1969, Life magazine chronicled Fortas's tangled relations with Wolfson. The revelation engendered calls for Fortas to be impeached, and motivated Richard Nixon, who knew that Fortas's resignation would enable the appointment of a more conservative Justice, ordered the Justice Department to investigate Fortas. Nixon was unsure if an investigation or prosecution was legal, but was convinced by then-Assistant Attorney General and future Chief Justice William Rehnquist that it would be.[25][48] Chief Justice Earl Warren (who, like the other Justices, was unaware of Nixon's actions) urged Fortas to resign to protect the reputation of the Court and avoid impeachment proceedings, as did Justice Hugo Black. However, when Fortas said it would "kill" his wife, Black changed his mind, realized that Nixon wanted Fortas off the Court for political reasons, and urged Fortas not to resign.[43][25][48] Nonetheless, Fortas ultimately decided resignation would be best for him and for his wife's legal career after Attorney General John N. Mitchell threatened to prosecute him, and potentially investigate his wife for tax evasion.[25][48] On the subject of his resignation, William J. Brennan later said, "We were just stunned." Fortas later said he "resigned to save Douglas," another justice who was being investigated for a similar scandal at the same time.[49] Fortas resigned from the Court on May 14, 1969.[1] When the Justice Department heard the news, the Attorney General's office celebrated, and Nixon called to congratulate them.[25][48]

In 1970, Louis Wolfson surreptitiously taped a private telephone call with Fortas. The transcript of this call was disclosed by Wolfson's lawyer, Bernard Fensterwald, to Washington Post reporter Bob Woodward in 1977. The Washington Post subsequently published several excerpts from the transcript, including language suggesting that Fortas might indeed have spoken with President Johnson about a pardon for Wolfson, but there is no evidence that it was a quid pro quo rather than a voluntary intervention for a friend. Wolfson was convicted of violating federal securities laws later that year and spent time in prison.[50]

Fortas's seat on the Supreme Court was vacant until June 1970, when Harry Blackmun was sworn into office.[1] This was Nixon's third attempt to fill the vacancy. His earlier failed nominations were of Clement Haynsworth in September 1969 and G. Harrold Carswell in February 1970.[21]