Serving at the Pleasure of the President: Justice Fortas's Failings as a Judge and the Continued Need for a Supreme Court Code of Ethics

• Author: Rowdy Kowalik
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Rhodes College (2019)
• Pages: 1095-1112

Serving at the Pleasure of the President: Justice

Fortas’s Failings as a Judge and the Continued Need

for a Supreme Court Code of Ethics

ROWDY KOWALIK*

INTRODUCTION

When legal ethics scholars and historians think of Justice Abe Fortas, his failed

confirmation for Chief Justice of the United States Supreme Court often comes to

mind. Many likely remember that Fortas’s Chief Justice confirmation ultimately

failed as a result of ethics allegations, one of which involved him receiving

$15,000 from donors for a seminar at American University, and another in which

“Fortas had accepted a $20,000 annual retainer from Wall Street financier Louis

Wolfson. . . .”

1

While these allegations of inappropriate gifts ultimately doomed

Fortas’s chance of becoming Chief Justice, according to historian Robert David

Johnson, other significant issues also put his confirmation in doubt—most nota-

bly, Fortas’s relationship with President Lyndon B. Johnson.

2

As President

Johnson’s close friend and long-time advisor, many senators were quite suspi-

cious of Justice Fortas’s role in the Johnson administration, especially given that

Fortas maintained his advisory role while serving on the Supreme Court.

3

The

relationship raised some concerns about whether Fortas would have the ability to

lead the Court independently and impartially.

4

However, as noted by Robert

Johnson, the Senate’s knowledge of Fortas’s advisory role in the White House

may not have been enough to stop the Justice from filling Earl Warren’s seat.

5

Throughout American history, Justices such as Louis Brandies, Felix Frankfurter,

and Chief Justice Taft frequently served as Presidential advisors during their time

on the bench.

6

Therefore, Fortas’s relationship with a sitting President was not

* J.D., Georgetown University Law Center (expected May 2022); B.A., Rhodes College (2019). © 2021,

Rowdy Kowalik.

1. Robert David Johnson, Lyndon B. Johnson and the Fortas Nomination 41 J. SUP. CT. HIST. 103, 115-17

(2016). “Louis Wolfson was under investigation for fraud and was seeking a pardon from [President] Johnson.”

at 117.

2. See id. at 117–18 (suggesting that if the $20,000 retainer was not exposed, it would have still been possi-

ble for Fortas to overcome the confirmation hearings).

3. See Fred P. Graham, Fortas Testifies He Aided Johnson While a Justice, N.Y. TIMES, July 17, 1968,

PROQUEST HISTORICAL NEWSPAPERS.

4. See Johnson, supra note 1, at 111.

5. See id. at 118.

6. See Bruce Allen Murphy, A Supreme Court Justice as Politician: Felix Frankfurter and Federal Court

Appointments, 21 AM. J. LEGAL HIST. 316, 316–17 (1977). Chief Justice Taft, Justice Miller, Justice Field, and

Justice Frankfurter are known to have counseled the Presidents, especially when it came to judicial

1095

unprecedented, and thus, arguably insufficient grounds to deny Fortas the position

of Chief Justice without the additional ethics violations that later came to light.

7

Nonetheless, those senators were justly concerned about Justice Fortas’s role in

the White House and the risk it posed both to the separation of powers and an in-

dependent, impartial Judiciary.

Through a close examination of the 1967 Supreme Court case, Pierson v. Ray,

8

this Note will demonstrate how Justice Abe Fortas’s desire to serve President

Johnson in his role on the bench undermined the independence of the Court while

also highlighting the need to create a clear, bright-line separation between the

Executive and Judicial branches in order to maintain the proper administration of

justice. Additionally, this Note will also explain how establishing a Judicial Code

of Conduct that is enforceable on the Supreme Court would help alleviate these

constitutional concerns moving forward. Ideally, the Judicial Code of Conduct

would include the enforcement of Rule 2 and 3 found in the current Judicial Code

of Conduct while also expanding beyond the existing rules by including a provi-

sion prohibiting communication involving issues of policy and politics between

the President and members of the Court.

9

By having Congress establish a clear,

unambiguous, and self-enforcing code of ethics on the Court, the justices would

be less likely to engage in potentially unethical behavior, and Congress would

have much clearer grounds to impose articles of impeachment for failure to meet

those ethical obligations. Consequently, establishing this objective ethical stand-

ard would preserve our Founder’s institutional design while also maintaining the

legitimacy and independence of the nation’s highest Court.

While many scholars have contemplated and advocated the need for a Judicial

Code of Conduct that would apply to the United States Supreme Court, the schol-

arship primarily focuses on the problems associated with recusal in specific cases

and inappropriate partisan organization affiliations.

10

However, little attention has

been given to the serious constitutional concerns that arise when a Supreme Court

Justice plays a policy or advisory role within the President’s Administration.

Ensuring the independence and impartiality of members of the Court is arguably

more important now than ever before. After witnessing President Trump’s recent

threats to America’s political institutions, ranging from: intimidating and firing

appointments; see also Cheney v. U.S. Dist. Court for D.C., 541 U.S. 913, 916–17 (2004) (describing the vari-

ous personal relationships Justices and presidents had throughout American history).

7. See Johnson, supra note 1, at 118; Cheney, 541 U.S at 916–17.

8. Pierson v. Ray, 386 U.S. 547 (1967).

9. MODEL CODE OF JUDICIAL CONDUCT R. 2 & R. 3 (2010).

10. See, e.g., Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 GEO J. LEGAL ETHICS

443, 456–59 (2013); Louis J. Virelli III, Congress, the Constitution, and Supreme Court Recusal, 69 WASH. &

LEE L. REV. 1535, 1587 (2012); Lori Ann Foertsch, Scalia’s Duck Hunt Leads to Ruffled Feathers: How the

U.S. Supreme Court and Other Federal Judiciaries Should Change Their Recusal Approach, 43 HOUS. L. REV.

457, 459–60 (2006).

1096 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1095