Fortas, Abe (1910–1982)

Author:Martha A. Field
Pages:1082-1083

Page 1082

Abe Fortas of Tennessee, a graduate of Yale Law School, became a NEW DEAL lawyer. As undersecretary of state, he opposed the removal and internment of Japanese Americans. In 1946 Fortas cofounded a Washington law firm whose corporate clients made him rich and influential, but he contributed his time to defending the rights of under-dogs and alleged security risks. One client, LYNDON B. JOHNSON, became a close friend. Fortas continued as his adviser after Johnson became President, and Johnson later appointed Fortas to the Supreme Court.

Justice Fortas served for less than four years, from October 4, 1965, to May 14, 1969. In 1968, President Johnson nominated him to serve as Chief Justice of the United States, succeeding EARL WARREN, but a Senate delay in confirming him, initiated primarily by Republicans eager to save the appointment in case a Republican was victorious in November, caused Fortas to withdraw from consideration before the 1968 Supreme Court Term opened. Before that term was over, Justice Fortas had resigned his seat because of revelations of alleged improprieties in his financial activities.

Four years away from practice is a very brief period in which to develop an overall judicial philosophy. Nevertheless, Fortas developed a distinctive style, notable for flowery prose, the artful phrase, and emphasis on the underlying facts of the particular case. He also developed distinctive positions on particular issues.

Fortas's FIRST AMENDMENT analysis was the most well-developed aspect of his constitutional theory. He disparaged the speech-conduct distinction adhered to by Justice HUGO L. BLACK and others; Fortas thought both speech and conduct could warrant First Amendment protection. But while he gave full protection in cases like TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969) to nonviolent, nondisruptive speech and conduct, he believed, as he said in Barker v. Hardway (1969), that speech or conduct that is "violent and destructive interference with the rights of others" falls outside the scope of First Amendment protections. In drawing this line in individual cases, Fortas focused tightly on the specific facts of the case. For instance, in Brown v. Louisiana (1966), the arrest of demonstrators for conducting a SIT-IN in a segregated public library was unconstitutional because the particular sit-in was "neither loud, boisterous, obstreperous, indecorous, nor impolite."

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