Abe Fortas

Abe Fortas
Enlarge picture
Abe Fortas

Nominated byLyndon Johnson
Preceded by
Succeeded by

Abraham Fortas (June 19, 1910April 5, 1982) was a U.S. Supreme Court associate justice. He served in that role from October 4, 1965 until May 14, 1969, when he resigned under pressure.

Early years

Fortas was born in Memphis, Tennessee. He was the youngest of five children. His father, a native of England, was an Orthodox Jew who worked as a cabinetmaker. Abe Fortas acquired a life-long love for music from his father, who encouraged his playing the violin, and was known in Memphis as "Fiddlin' Abe Fortas". He attended public schools in Memphis, and graduated from Southwestern (now known as Rhodes College) in 1930.

Fortas left Memphis to enroll in Yale Law School. He graduated second in his class in 1933 (second only to another Memphian, Luke Finlay) and was Editor in Chief of the Yale Law Journal. One of his professors, William O. Douglas, was impressed with Fortas and arranged for him to stay at Yale and become an assistant professor.

Shortly thereafter, Douglas left Yale to run the U.S. Securities and Exchange Commission (SEC) in Washington, DC. Fortas commuted between New Haven and Washington both teaching at Yale and advising the SEC. In 1935, Fortas married Carolyn E. Agger, who would become a successful tax lawyer (they had no children).

Early government service

He served as general counsel of the Public Works Administration and as Undersecretary of the Interior during the Franklin D. Roosevelt administration. While he was working at the Department of the Interior, the Secretary of the Interior, Harold L. Ickes, introduced him to a young congressman from Texas, Lyndon Johnson. In 1945, Fortas was granted a leave of absence from the Department of Interior to join the armed forces. However, according to his official biography, within a month, Fortas was discharged because of an arrested case of eye tuberculosis. Later in 1945, he was appointed by President Harry Truman as an advisor to the U.S. delegation during the organizational meeting of the United Nations in San Francisco and at the 1946 General Assembly meeting in London. [1]

Private practice

After leaving government service, Fortas started the firm Arnold, Fortas & Porter. It became one of Washington's most influential law firms.

In 1948, Lyndon Johnson ran for the Democratic nomination for one of Texas' seats in the US Senate. He won the primary by only 87 votes. His opponent convinced a federal judge to issue an order taking Johnson's name off of the general election ballot while the primary results were being contested; there were serious allegations of corruption in the voting process, including 200 Johnson votes that had been cast in alphabetical order. Johnson asked Fortas for help, and Fortas persuaded U.S. Supreme Court Justice Hugo Black, to overturn the ruling. Johnson became a U.S. senator, winning the general election.

During the Red Scare of the late 1940s and early 1950s, Fortas came to widespread notice as the defense attorney for Owen Lattimore. In 1950, Fortas often clashed with Senator Joseph McCarthy when representing Lattimore before the Tydings Committee and later before the Senate Internal Security Subcommittee.

Durham v. United States

Fortas was known in Washington circles to have a serious interest in psychiatry, still a controversial science 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 the Court of Appeals. Durham’s defense had been denied because the District Court had applied the M’Naghten Rules, requiring that the defense prove the accused didn’t 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 modern psychiatry, this test was still in near universal use in U.S. jurisprudence 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 U.S. criminal law, the Court of Appeals accepted Fortas’ call to abandon the M’Naghten Rule and allow for testimony and evidence regarding defendants’ mental state. (See: Durham rule)

The Gideon case

In 1962, Fortas was asked to represent Clarence Earl Gideon's 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. Fortas and a team of attorneys from his firm spent months preparing the appellate brief, and won a unanimous decision from the Supreme Court for Gideon. This decision, Gideon v. Wainwright, solidified the constitutional right of criminal defendants to have legal counsel when charged with any offenses.

Associate Justice of the Supreme Court

Enlarge picture
Abe Fortas


In 1965, Lyndon Johnson, then President, persuaded Supreme Court Justice Arthur Goldberg to resign his seat to become Ambassador to the United Nations. He then appointed Abe Fortas, a longtime friend, to the court. On the Court, Fortas was generally a reliable liberal vote, and was particularly concerned with children's rights. Fortas dissented when the Court upheld some public intoxication laws, for example 1968's Powell v. Texas. In 1968, Fortas authored a book titled, Concerning Dissent and Civil Disobedience.

Children's and students' rights

During his time on the Court, Fortas led a revolution in the U.S. 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. Authoring 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 “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. Yet the 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 fifteen year old who had been sentenced to six years (until his majority) in Arizona's 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 fine or two months in jail. Fortas used the case to launch a ferocious attack on the juvenile justice system and parens partiae. His majority opinion was a landmark, extending the Fourteenth Amendment 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 authored another landmark in children’s rights with the decision in Tinker v. Des Moines School District (1969), a case involving 2 high school students and 1 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 fist time, Fortas wrote that “neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate?

Epperson v. Arkansas

In 1968, Fortas convinced the court to accept the appeal of Little Rock 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, with most Justices favoring fairly narrow grounds. Fortas was the architect and author of the broader landmark majority opinion that eventually emerged banning religiously based creation narratives from public school science curriculums.

Nomination to be Chief Justice

When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Associate Justice Fortas to replace Warren as Chief Justice. However, the Warren Court's constitutional jurisprudence had angered many conservative members of the United States Senate, and the nomination of Fortas provided the first opportunity for these senators to register their disenchantment with the direction of the Court. Fortas was the first Chief Justice nominee ever to appear before the Senate, and he faced hostile questioning about his relationship with Lyndon Johnson. Johnson had consulted with Fortas about political matters frequently while Fortas was on the Court.

Also controversial was Fortas's acceptance of $15,000 for speaking engagements at the American University law school. While not illegal, the size of the fee raised much concern about the Court's insulation from private interests, especially as it was funded by Fortas's former clients and partners. Upon learning of this problem, President Johnson decided to help Fortas win a majority vote, but only as a face-saving measure, according to Johnson aide Joseph Califano:

"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.[2]


The debate on Fortas's nomination had lasted for less than a week, led by Republicans and conservative southern Democrats, or so-called "Dixiecrats". Several senators who opposed Fortas asserted at the time that they were not conducting a perpetual filibuster, and were not trying to prevent a final up-or-down vote from occurring.[3]

In 1968, Senate rules required two-thirds of senators present to stop a debate (nowadays 60% of the full Senate is needed). 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 not present.

The New York Times wrote of the 45 to 43 cloture roll call: "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."[4] The next president, Richard Nixon, a Republican, appointed Warren E. Burger as Chief Justice.

Resignation

Fortas remained on the bench, but in 1969, a new scandal arose. Fortas had accepted a secret $20,000 retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. Fortas 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 expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon; Fortas denied that he ever helped Wolfson. Wolfson was convicted of violating federal securities laws later that year and spent time in prison, and Fortas returned the retainer.

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. President Nixon eventually appointed as his replacement Harry A. Blackmun, after two previous nominations failed.

Later years

Rebuffed in the wake of his fall by the powerful Washington law firm he had founded, Fortas founded another, Fortas and Koven, and maintained a successful law practice until his death in 1982.

References

1. ^ "[1]" Retrieved 2007-08-4.
2. ^ Califano, Joseph. The Triumph and Tragedy of Lyndon Johnson (1991), pages 316–317.
3. ^ Cornyn, John. "Our Broken Judicial Confirmation Process and the Need for Filibuster Reform," Harvard Journal of Law and Public Policy, Volume 27, page 181 (2003). Retrieved 2007-02-16.
4. ^ Babington, Charles.

"Filibuster Precedent? Democrats Point to '68 and Fortas", Washington Post (2005-03-18). Retrieved 2007-02-16.

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Preceded by
Arthur Goldberg
Associate Justice of the Supreme Court of the United States
October 4, 1965May 14, 1969
Succeeded by
Harry Blackmun


The Warren| Court
1965–1967:H. Black | Wm. O. Douglas | T.C. Clark | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | A. Fortas|
1967–1969:H. Black | Wm. O. Douglas | J.M. Harlan II | Wm. J. Brennan | P. Stewart | B. White | A. Fortas | T. Marshall|
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