Not So Supreme Court

By Charlie Lambert

The ongoing criticism of the SCOTUS, especially the behavior of one particular member of that body, his quick dismissal of any and all allegations leveled at him from any source, reminds me of an earlier justice who happened to have been born in Memphis. That justice, Abraham Fortas, has the dubious distinction of being the only SCOTUS justice in history to have resigned from the court while facing the prospect of impeachment and removal. His trespasses were minimal but in those days everyone was expected to face up his shortcomings or be forced to do so. That seems to be ancient history. These days, if the person refuses to take responsibility himself, there seems to be no other entity to assure that justice is done.

We have to go back six decades to trace the story of Associate Justice Abraham Fortas as he was being nominated by President Lyndon Johnson and ratified by the Senate to assume what was known as “the Jewish seat” on that august body. But, first, a little context is in order. Fortas was born in 1910 to an Orthodox Jewish family in Memphis. He was a brilliant student and a great lover of music, especially the violin, a talent he inherited from his father. Abe graduated from Southwestern College, a private, liberal arts college (now called Rhodes College) with degrees in English and Political Science. He was first in his 1930 graduating class. He won scholarships to both Harvard and Yale Law Schools, choosing Yale. He excelled at Yale and became the editor of the Yale Law Journal as well as a well-known violinist. He graduated cum laude in 1933.

Fortas became a law professor at Yale after his graduation at the behest of another professor there. William O. Douglas (a famous SCOTUS justice in his own right later in life). Fortas was working as an advisor to the SEC in Washington thanks to his expertise in that field while commuting to his job at Yale. President Roosevelt then tapped Fortas as a principal at the Department of the Interior. He continued commuting from New Haven to D.C. to fulfill all his duties. After Roosevelt died in 1945, the new President (Truman) appointed Abe to be on one of delegations setting up the United Nations, alongside Eleanor Roosevelt, widow of FDR. So far so good for this popular young man.

A routine tax issue brought Fortas to the attention of soon-to-be Senator Lyndon Johnson of Texas. Impressed with the talent and poise of young Fortas, Johnson took him under his wing and nurtured his career in any way he could. Lyndon’s success in politics included an uncanny eye for talent and the knack of using it to his advantage. Twenty years later President Johnson, in an attempt to move SCOTUS more to the left, supported Fortas for the empty “Jewish seat” on the court. Traditionally, one seat was designated as “the Jewish seat” and this one was an easy decision since Fortas and Johnson shared a liberal philosophy as well as many years of mutual benefit. Very soon, the Chief Justice seat held since 1953 by Earl Warren opened up and Johnson tried to move Fortas to that lofty spot. The move failed and Warren Burger called in his own cronies to support him to become Chief Justice for the next seventeen years.

Abe Fortas went on to serve four, short years on the SCOTUS during which he rendered memorable service by delivering several important rulings. Even before he joined the court he argued a precedent-setting case that defined rights of all defendants to have counsel regardless of their financial condition (Gideon vs. Wainwright). On the court, one of his rulings dictated the way the governor of a state should break a deadlock to election and another defined the legal status of minors in criminal cases.

Unfortunately, Fortas was felled from his position on the court by millionaire financier, corporate raider, and (later) convicted felon Louis Wolfson. Wolfson indirectly paid a consulting fee of $20,000 to Fortas through one of Wolfson’s family foundations at a time when Wolfson was being investigated for insider trading. Such fees to justices were not uncommon in that era and Fortas even returned the payment. But the White House decided to make an example of Fortas for purely political reasons.

Richard Nixon was President by 1969 and he wanted to move the court back to the right. He used Attorney General John Mitchell to approach Fortas and threaten his impeachment and removal from the court if Fortas would not resign. Nixon authorized Mitchell to warn Fortas that a full Justice Department investigation would ensue. Nixon wanted that seat for a more “cooperative” justice, choosing Harry Blackmun as Fortas replacement, a move he would soon regret when Blackmun became one of the most liberal justices in history. In fact, he wrote the majority opinion in Roe Vs. Wade in 1973. Ironies never cease.

The point should not escape notice that Fortas did not willingly resign from the court upon discovery that he had erred in judgment. The moral of his story is that, as callous as Nixon’s motives were, there was a mechanism to remove Fortas. SCOTUS had no well-defined code of conduct then nor does it now. The difference is the reluctance of all three pillars of government to step up to the plate and demand that SCOTUS create and abide by an official ethics standard just as every other government entity observes.

Thus, Abe Fortas became the only sitting SCOTUS justice ever to resign under such a threat. Ironically, the man used to liberalize the court in 1965 became the man used four years later to move the court back to the right. This was just prior to the real fireworks of the Nixon presidency when his Vice President, Spiro Agnew, was forced to resign and then came the Watergate incident. The Fortas fiasco looked like nothing in comparison to the political shocks in store for our country by 1972.

Fortas might have gone back to his old job at one the nation’s top law firms, Arnold and Porter, which he founded years earlier as Arnold and Fortas. But he found himself unwanted by the current principals of the firm. Fortas had earned a reputation as a “greedy egotist” over the years. Lawyers who worked for him said he had “total indifference to their emotional needs and was a supremely demanding boss”. Even his peers suggested he had hardly any real friends and almost no human relationships with anyone in the field of law. Ironically his wife, Carolyn Agger, a successful tax attorney, still worked at the Porter firm at the time Abe was rejected by them. She was a highly-prized partner there in the tax division.

Fortas finally formed a small law office on M. St. in D.C.(Fortas and Koven) where he was mainly a consultant in the field of tax and securities cases. He continued playing the violin, often hosting famous musicians at his Georgetown home on Sunday evenings. Referred to as “Fiddlin’ Abe Fortas”, that supposedly endearing term took on a new meaning after his tenure on the SCOTUS and as he lived out his life away from most of his legal cronies, many of them alienated by his past and by his dour personality. He died in 1982 of an aortic aneurysm.

Sources:
Wikipedia Abe Fortas
Washington Post “Abe Fortas Today, “A Lawyers’ Lawyer”, 12/16/1979, Tamar Lewis
Quick Facts About Roe Vs. Wade, Derrick Taylor, NYT, 5/3/2022t
Gideon Vs. Wainwright, Wikipedia