Fortas, Abe (1910–1982)

Abe Fortas is remembered more for the circumstances surrounding his abortive nomination as Chief Justice and his subsequent resignation than for his judicial opinions. This is unfortunate. Trained as a Washington lawyer during the 1930s, and later trusted as a close advisor to President Johnson, Fortas, perhaps more than any other Justice, provided a link between Roosevelt’s New Deal and Johnson’s Great Society. Although his tenure was brief and controversial, Fortas played a significant role in shaping some of the most important cases to come down from the Warren Court.

Abe Fortas was born on June 19, 1910, in Memphis Tennessee, to Woolfe and Rachel Berzansky Fortas recent Jewish immigrants from Eastern Europe. Theirs was a modest, working class family steeped more in the cultural than the religious tradition of Judaism. From his father, an amateur musician, Fortas inherited a deep and abiding love of music. Fortas himself became an avid violinist, and he later came to count Pablo Casals and Isaac Stern among his friends and clients.

An outstanding student, Fortas won scholarships both to Southwestern College in Memphis and to Yale Law School. At Yale, Fortas served as editorin- chief of the Yale Law Journal and came under the influence of two powerful exponents of legal realism: Thurman Arnold and William O. Douglas. After graduating in 1933, Fortas joined Yale’s faculty while also accepting a position with Jerome Frank in Franklin Roosevelt’s New Deal Agricultural Adjustment Administration. In 1937, while serving at the Interior Department, Fortas befriended a young Texas Congressman named Lyndon Johnson.

In the 1940s, Fortas left government service but remained in Washington, D.C. and founded a law firm with Thurman Arnold and Paul Porter. Fortas came to exemplify the Washington lawyer of the postwar era. An able and aggressive advocate, trained in the New Deal, he effectively navigated clients through the intricacies of federal policies and programs.

At the outset of the Cold War in the late 1940s, Fortas took a lead role in opposing President Truman’s loyalty program. He particularly objected to an incursion of the Executive and Legislative Branches of government into what he perceived as the judicial province of ‘‘judging’’ loyalty. Such incursions threatened to abridge the due process rights of challenged individuals. Soon, loyalty cases occupied a substantial portion of his firm’s working hours. Prominent among the cases taken on by Fortas during this time was that of Owen Lattimore, a sinologist who headed the Page School of International Relations at Johns Hopkins University, who was accused by Senator Joseph McCarthy of being the ‘‘top Russian espionage agent in the United States.’’ After five years of impassioned and meticulously organized defense by Fortas before investigating committees led both by Senator McCarthy and later, Senator McCarran, Lattimore was finally vindicated in 1955.

In 1962, the U.S. Supreme Court appointed Fortas to represent Clarence Gideon, in what became a landmark case of Gideon v. Wainright. Gideon had been convicted of breaking and entering in Florida. He was indigent and could not afford to hire a lawyer at his initial trial. He filed a pro se appeal to the Supreme Court asserting that he should be freed because he had been denied effective access to counsel. Fortas argued the case before the Supreme Court and won a unanimous decision. In finding for Gideon, the Supreme Court held that the Sixth Amendment guaranteed anyone accused of a serious crime a right to counsel, and that those too poor to pay would be provided with a lawyer at no cost.

Always drawn to men of power and influence, Fortas maintained his friendship with Lyndon Johnson during the 1950s, serving as his lawyer and close advisor until Johnson, as President, nominated his old friend to the Court in 1965.

On the Court, Fortas developed a reputation as a liberal in civil rights and a conservative in areas involving government regulation of business. ‘‘The Courts may be the principles guardians of the liberties of the people,’’ he wrote, but ‘‘They are not chiefly the administrators of its economic destiny.’’ Baltimore & Ohio Railroad v. United States, 386 U.S. 372, 478 (1967). His opinions demonstrate an instrumental approach to the law but reveal no coherent legal philosophy. This is not to say Fortas was unprincipled, although some accused him of this, but that, true to his education in legal realism, he saw the law as a tool to achieve specific results.

Fortas’ experience as a corporate lawyer led him to take a dim view of government interference in business matters. For example, in Baltimore & Ohio Railroad v. United States, 386 U.S. 372 1967, Fortas, in dissent, argued that the Court had no business questioning the informed decision of the Interstate Commerce Commission to allow a merger of two railroads.

Fortas greatest concern, however, lay in protecting the rights of minorities, the disenfranchised, and the powerless. He fiercely championed the rights of criminal defendants, especially their Fifth Amendment right against self-incrimination. In Re Gault, 387 U.S. 1 (1967), Fortas wrote a strong opinion that effectively created a ‘‘Bill of Rights’’ for juvenile criminal offenders by extending certain basic Fourteenth Amendment due process rights into juvenile courts. Writing in a realist vein, Fortas relied more on historical, sociological, and psychological studies of the juvenile justice system than on legal precedent to support his holding.

Free speech was an area of special concern for Fortas especially in the era of civil rights and anti– Vietnam War demonstrations. He was not, however, a First Amendment absolutist. To the contrary, he could not abide disruptive civil disobedience or symbolic speech that violated valid laws merely to dramatize dissent. The musician in him cherished harmony and decorum. He allowed for tension and conflict but insisted it be contained or structured. Thus, in Brown v. Louisiana, 383 U.S. 131 1966), Fortas found a Louisiana breach of the peace statute unconstitutional as applied to several blacks who conducted a peaceful sit-in of a segregated public library. But in Street v. new York, 394 U.S. 576 (1968), Fortas, in a stinging dissent, drew the line at flag burning, declaring that ‘‘Protest does not exonerate lawlessness.’’ Id. at 617. Yet in his landmark opinion in Tinker v. Des Moines School District, 393 U.S. 503 (609), Fortas held that a school’s prohibition on black armbands worn by certain students to protest the Vietnam War was unconstitutional. Echoing his support for juvenile rights enunciated in Gault, Fortas declared that students did not surrender their First Amendment rights on entering a school. Wearing armbands, Fortas asserted, was akin to ‘‘pure speech’’ that did not involve ‘‘aggressive, disruptive actions’’ and did not interfere with the school’s work. Id: at 508–509, 512.

Fortas also has a very strong commitment to privacy as a constitutional right. Indeed, Fortas saw the right to privacy as a significant limitation to the freedom of the press. Consistent with his free speech cases (and with his deep personal antipathy toward the press), Fortas refused to extend First Amendment protections to press activities he considered to be intrusive or disruptive. Thus, for example, dissenting in Time v. Hill, 385 U.S. 374 (1967), Fortas asserted that ‘‘There are great and important values in our society, none of which is greater than those reflected in the First Amendment, but which are also fundamental and entitled to the Court’s careful respect and protection. Among these is the right to privacy.’’ Id: at 412.

After only three years on the Court, President Johnson nominated Fortas to replace the retiring Earl Warren as Chief Justice. It was an honor from which he never recovered. The confirmation hearings took place after Johnson had become a lame duck by refusing to seek reelection. Fortas soon became the target of a conservative backlash against the activism of the Warren Court and Johnson’s Great Society programs. Revelations of his ongoing business connections with millionaire businessman Louis Wolfson didn’t help matters any. By October, Johnson was forced to withdraw Fortas’ name. One year later, amid further allegations of improper business dealings, Fortas resigned from the Court although he maintained his innocence of any wrongdoing. Back in the private sector he was rebuffed by his old law firm but continued to practice law until his death in 1982.

JONATHAN KAHN

References and Further Reading

• Fortas, Abe. Concerning Dissent and Civil Disobedience. New York: World Publishing Co., 1968. A fascinating look into Fortas’ ideas on the nature and limits of free expression in a civil society, made even more interesting by the fact that he wrote it while sitting on the Supreme Court.
• Kalman, Laura. Abe Fortas: A Biography. New Haven: Yale University Press, 1990. Kalman’s solid study of Fortas’ life is the first to be based on complete access to Fortas’ private papers. Her work is therefore more complete than Murphy’s yet lacks a certain critical distance. Provides a good review of the development of Fortas’ legal ideas.
• Murphy, Bruce Allen. Fortas: The Rise and Fall of a Supreme Court Justice. New York: William Morrow and Co., 1988. An incisive study that concentrates on Fortas’ life as a Washington insider. More of a political biography, where Kalman’s work is more a mix of the personal and the legal sides of Fortas’ life.

Cases and Statutes Cited

• Baltimore & Ohio Railroad v. United States, 386 U.S. 372 (1967)
• Brown v. Louisiana, 383 U.S. 131 (1966)
• In Re Gault, 387 U.S. 1 (1967)
• Street v. New York, 394 U.S. 576 (1968)
• Time v. Hill, 385 U.S. 374 (1967)
• Tinker v. Des Moines School District, 393 U.S. 503 (1969)