The Spectacular Fall of Abe Fortas

• Author: Allen Pusey
• Pages: 72-72

By the time Lyndon John-

son named him to the U.S.

Supreme Court in 1965 , Abe

Fortas was regarded—and

at times reviled—as one of the best

lawyers in Washington. Having worked

in a range of posts across the federal

government , he knew where the secrets

were buried and who buried them.

When Johnson, perceiving the need

for judicial support for his Great Soci-

ety programs, induced Justice Arthur

Goldberg to resign to become ambas-

sador to the United Nations, there was

scant surprise in Washington that Fortas

was nominated.

Fortas and Johnson had become

close in Johnson’s early days as a Texas

congressman. In 1948, it had been For-

tas who forged the legal strategy that

propelled Johnson to the Senate —de-

spite credible evidence that his 87-vote

victory in the Democratic primary

had been tainted by voter fraud. And

when Air Force One touched down at

Andrews Air Force Base in the hours

after the John F. Kennedy assassination

in Dallas, Fortas was there to meet the

newly sworn-in president .

Although Fortas regarded himself

as a Southerner in a city dominated by

southern Democrats, his nomination

was not met with universal regard. He

was born in Memphis, Tennessee, in

1910 to Jewish immigrant parents. His

father was a cabinetmaker; his mother,

a homemaker. He thrived in school, at-

tended a small Presbyterian college and

later entered Yale Law School as one of

its youngest students. Upon graduating

near the top of his class, Fortas stayed

at Yale to teach at the urging of one of

his professors, William O. Douglas.

But Fortas also began commuting to

a variety of jobs in Washington, where

he built a stellar resumé at posts in the

gearworks of the emerging New Deal:

He worked for the Agricultural Ad-

justment Administration, the Securities

and Exchange Commission, the Public

Works Administration’s Bituminous

Coal Division, and he eventually be-

came undersecretary of the interior.

After World War II, Fortas and two

government lawyers, Thurman Arnold

and Paul Porter, founded a  rm

designed to help businesses ne-

gotiate the regulatory structure

they had helped create.

Fortas quickly became

a go-to adviser in the

blossoming post-

war practice of

regulatory law.

Although

Fortas was

unabashed in

his support of

business interests

in Washington,

his work for the

American Civil

Liberties Union drew

sneers from Southern

Democrats. He defended

targets of the McCarthy-era hear-

ings and spearheaded important civil

liberties cases. His argument before

the U.S. Supreme Court in Gideon v.

Wainwright famously secured the con-

stitutional right to counsel for not just

capital crimes.

Despite vague accusations of

communist ties, Fortas was con rmed

in the Senate , becoming a vigorous

advocate for Johnson’s interests on

the bench. And in June 1968, with the

announced retirement of Chief Justice

Earl Warren, the extent of that advoca-

cy became known.

Johnson nominated Fortas for chief

justice , and with the prospect of a Rich-

ard Nixon presidency looming months

later, Southern senators from both

partie s began resisting pressure from

Johnson for a fast-tracked con rmation.

And in the subsequent Fortas vetting,

opponents found what they needed to

deny him the post.

First, there was a $15,000 payment

to Fortas for a summer teaching post.

Not only was this considered an ex-

traordinary supplement to his $39,500

government salary, the post was funded

by former law  rm clients. More

signi cantly for a sitting justice, Fortas

revealed he had never stopped ad-

vising Johnson—attending White

House staff meetings, advising

on judicial nominations

and reporting on pri-

vate deliberations by

the court.

Faced with a

Senate  libuster,

Fortas asked

Johnson to

withdraw

his name. He

returned to

the court only

to face another

scandal when Life

magazine revealed

he had been receiving

regular payments from

Louis Wolfson , a former Wall

Street client convicted of fraud. Under

their agreement, Fortas was to receive

$20,000 a year for life. He had returned

the money, but only after Wolfson

was indicted.

With his reputation shattered and

facing calls for his impeachment, Fortas

was urged by Earl Warren to resign. He

submitted his resignation to President

Nixon on May 14, 1969. Q

The Spectacular Fall

of Abe Fortas

BY ALLEN PUSEY

Precedents

72

MAY 14, 1969

U.S. Supreme Court Justice

Abe Fortas

Photo by Bettmann/Contributor via Getty Images

ABA JOURNAL | APRIL–MAY 2020

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