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 a lower court trial two years earlier, in an appeal before a U.S. Court of Appeals.[12]

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' call to abandon the M'Naghten Rule and to allow for testimony and evidence regarding the defendant's mental state.[13]

In 1963, Fortas represented Clarence Earl Gideon in his appeal before the Supreme Court. Gideon, a poor man from Florida, had been convicted 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 attorneys or lawyers.[14][15]

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 Fortas' wife Agger 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 and found themselves on opposing sides in 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".[6]

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".[6]

Fortas called John Marshall Harlan II "one of my dearest friends, although we usually are on opposite sides of the issues here."[6]

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."

In this case, Maddox trailed Callaway by about 3,000 votes. On the other hand, 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."[18]

Fortas was critical of justices (he specifically cited Thurgood Marshall) who frequently broke into attorneys' arguments to ask questions.[6] 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.[6]

Abe Fortas

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."

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.

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, 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' 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 in Epperson v. Arkansas that emerged, banning religiously-based creation narratives from public school science curricula.

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."[6]

When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Fortas to replace Warren as Chief Justice. However, the Warren Court's jurisprudence had angered many conservative members of the Senate, and the nomination of Fortas provided the first opportunity for these senators to register their disenchantment with the direction of the Court; they planned to oppose Fortas's nomination. Senate Judiciary Committee chair James Eastland told Johnson he "had never seen so much feeling against a man as against Fortas".[6] Fortas was the first nominee for Chief Justice ever to appear before the Senate and faced hostile questioning about his relationship with President Johnson, who had consulted with Fortas about political matters frequently while Fortas was on the Supreme Court.

Fortas's acceptance of $15,000 for nine speaking engagements at American University's Washington College of Law became a source of controversy.[16] 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.[6] While the fee was legal, the size of the fee raised much concern about the Court's insulation from private interests, especially as it was funded by former 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.[6]

Senator Thurmond spent considerably more time raising awareness of the Supreme Court's overturning of a number of obscenity rulings dealing with pornographic films, which Fortas had consistently voted in favor of on First Amendment grounds. Thurmond obtained some of the films in question and played them in the Senate building while the hearings were out of session, eventually admitting them to the official record. He was lampooned in the press as a pornographer himself for these tactics—the showings became the "Fortas Film Festival"—but the association of Fortas with some of the films' strip-teases and especially the rape or homosexual sex depicted in one called Flaming Creatures was effective. Many,[19] including Nixon adviser Pat Buchanan, credit Thurmond's efforts for ruining Fortas's nomination.[20]

Upon learning of this problem, President Johnson decided to help Fortas win a majority vote, only as a face-saving measure.[21] One of President Johnson's aides, Joseph Califano, wrote:

"We won't withdraw the nomination. I won't do that to Abe." Though we couldn't get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. "With a majority on the floor for Abe, he'll be able to stay on the Court with his head up. We have to do that for him." Fortas also wanted the majority vote.... On October 1, after a strenuous White House effort, a 45–43 majority of senators voted to end the filibuster, short of the 59 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination.[22]

The debate on Fortas's nomination had lasted for less than a week, led by Republicans and conservative southern Democrats, or so-called Dixiecrats. Republican Senator John Cornyn asserted in 2003 that several senators who opposed Fortas asserted at the time said they were not conducting a perpetual filibuster and were not trying to prevent a final up-or-down vote from occurring.[23] Public debate occasionally still occurs over whether Fortas would have been confirmed in a simple majority vote. The Fortas vote is seen as an early precedent for later filibusters of judicial nominees.[24]

In 1968, the rules of the Senate required the approval of two thirds of senators present to cut off debate (from 1975 to 2017 the consent of three fifths of the membership of the Senate was required to cut off debate, but as of 2017 a simple majority is sufficient). The 45 to 43 cloture vote to end the Fortas debate included 10 Republicans and 35 Democrats voting for cloture, and 24 Republicans and 19 Democrats voting against cloture. The 12 other senators, all Democrats, were absent. The New York Times wrote of the 45 to 43 vote for cloture: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote."[25] The next president, Republican Richard Nixon, appointed Warren Burger the next Chief Justice. David Leonhardt of The New York Times called Johnson's nomination of Fortas "one of the most consequential blunders in modern American politics," as the role of Chief Justice has been held by conservatives appointed by Republican presidents ever since.[26]

Fortas remained an associate justice, but in 1969, a new scandal arose. Fortas had accepted a US$20,000 (US$139,437 in 2019 dollars[27]) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966.[28] Fortas had signed a contract with Wolfson's foundation. 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). 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 and had earlier returned the retainer but not until Wolfson had been indicted twice.[6]

Fortas's judicial reputation was also affected by the previous Johnson consultation and American University scandals.[16] The new Richard Nixon administration became aware of the Wolfson deal when a Life reporter began investigating the story. FBI director J. Edgar Hoover also mentioned a "tax dodge" Fortas had entered into with other judges, and Nixon concluded Fortas should be "off of there."[6] When Chief Justice Earl Warren was informed of the incident by the new Attorney General John N. Mitchell, he persuaded Fortas to resign to protect the reputation of the Court and avoid lengthy impeachment proceedings, which were in their preliminary stages.[6] Justice Hugo Black also urged Fortas to resign, but when Fortas said it would "kill" his wife, Black changed his mind and urged Fortas not to resign. Days after impeachment proceedings formally began with a resolution introduced by Rep. H. R. Gross (R-Iowa), Fortas decided resignation would be best for him and for his wife's legal career, he reportedly told his colleagues. 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.[6]

Fortas resigned from the Court on May 14, 1969.

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.

Fortas's seat on the Supreme Court was vacant for nearly the court's entire 1969–70 term. President Nixon eventually appointed Harry Blackmun as Fortas's replacement after the nominations of Clement Haynsworth and G. Harrold Carswell had failed.

After Fortas's resignation, no one held the "Jewish seat" on the Supreme Court until Ruth Bader Ginsburg was appointed in 1993. Stephen Breyer, who is also Jewish, was confirmed to succeed Blackmun in 1994.