Path to the Supreme Court
Abe Fortas, a Memphis cabinetmaker's son, entered Yale Law at twenty and ran its journal, moved through the New Deal agencies to Interior Undersecretary at thirty-two, and built Arnold, Fortas & Porter into Washington's defining firm — arguing Gideon v. Wainwright by the Court's appointment in 1963, the case that gave every felony defendant a lawyer. He was also Lyndon Johnson's lawyer and intimate, back to the 1948 injunction fight that saved LBJ's 87-vote Senate primary. In 1965 Johnson manufactured a vacancy by moving Goldberg (§94) to the UN and pressed the genuinely reluctant Fortas into it.
On the Supreme Court
Fortas wrote three opinions any justice would keep: In re Gault, extending due process to juvenile court; Tinker, holding that students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate'; Epperson, striking Arkansas's anti-evolution law. But he never stopped being Johnson's counselor — Vietnam, steel prices, the works — and it undid him twice. The 1968 Chief Justiceship nomination died by what is generally counted the first filibuster of a Court nominee, over the cronyism, Thurmond's 'Fortas Film Festival,' and a $15,000 seminar fee raised from former clients. Then Life exposed a $20,000-a-year lifetime retainer from Louis Wolfson's foundation — accepted and returned in 1966 — and on May 14, 1969, Fortas resigned: the first justice driven from the bench by scandal. He rebuilt a small practice and died in 1982, having argued once more before the colleagues he had left.
The Voting Record
How Fortas voted in the 538 cases the Supreme Court Database records from the 1965 term through the 1968 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Fortas voted with Brennan more than with anyone else — the same side of the judgment in 82.9% of their 345 divided cases — and with Harlan II least, at 40.2%. See the matrices →Compared against the 7 colleagues Fortas shared at least 300 divided cases with.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
In re Gault
1967Holding · Juveniles facing delinquency proceedings are entitled to notice, counsel, confrontation, and the privilege against self-incrimination.
Role · Fortas wrote the majority.
Due process reached the juvenile court — 'the condition of being a boy does not justify a kangaroo court.'
Read the opinion →Tinker v. Des Moines Independent Community School District
1969Holding · Students wearing black armbands against the Vietnam War engaged in protected speech; schools may punish only substantial disruption.
Role · Fortas wrote the majority.
The schoolhouse-gate line — still the framework for every student-speech case.
Read the opinion →Epperson v. Arkansas
1968Holding · Arkansas's ban on teaching evolution violated the Establishment Clause.
Role · Fortas wrote for the Court.
Scopes's ghost finally laid — the state may not tailor the curriculum to any religious doctrine.
Read the opinion →Go Deeper
Abe Fortas is the brilliant insider whose fall was as steep as his rise. A Memphis tailor's son and a star of the New Deal legal world, he built Washington's most powerful law firm and became Lyndon Johnson's closest adviser and personal lawyer — the man who saved LBJ's contested 1948 Senate election in court. As an advocate he argued Gideon v. Wainwright, winning the right to counsel for poor defendants; on the Court, where Johnson placed him in 1965, he wrote In re Gault, extending due process to children, and Tinker v. Des Moines, holding that students do not 'shed their constitutional rights at the schoolhouse gate.' Then came the ruin: Johnson's 1968 attempt to make him Chief Justice collapsed under a Senate filibuster, and in 1969 a magazine exposé of an outside financial retainer forced him to resign — the first justice to leave under threat of impeachment. Laura Kalman's biography is the definitive life; Bruce Murphy's tells the rise and ruin. Start with Kalman, read Tinker and Gault, and trace an American tragedy.
The Bookshelf
The definitive biography, exhaustively researched and judicious. Kalman, a leading legal historian, traces the whole arc — the poor Memphis boyhood, the Yale Law brilliance, the New Deal agencies, the founding of Arnold, Fortas & Porter, the intimacy with Johnson, and the four years on the Court that ended in scandal. She is especially strong on Fortas's jurisprudence and on the ethics of the outside income that destroyed him, neither excusing nor sensationalizing. The essential and most balanced account. Yale University Press.
The first full account of the scandal that brought Fortas down — Robert Shogan's contemporary narrative of the 1968 chief-justice filibuster and the financial arrangement that forced the only resignation-under-fire in the Court's modern history. Bobbs-Merrill.
Fortas's most enduring opinion, and a charter of students' rights. Public-school students had been suspended for wearing black armbands to protest the Vietnam War; Fortas held for the Court that this silent, symbolic expression was protected speech, writing that neither students nor teachers 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' A landmark of First Amendment law and the touchstone of every case since about the free-speech rights of the young, it remains among the most cited opinions of the era. Free online.
Fortas's great opinion on the rights of the accused young. A fifteen-year-old had been committed to a state institution for years, after a hearing without counsel, notice, or the right to confront witnesses, for a crime that would have drawn a small fine for an adult. Fortas held that the Due Process Clause applies to juvenile proceedings — that a child facing loss of liberty is entitled to notice, counsel, confrontation, and the privilege against self-incrimination, because 'under our Constitution, the condition of being a boy does not justify a kangaroo court.' The foundation of modern juvenile justice. Free online.
The fuller account of the scandal, by the biographer of William O. Douglas (§79). Murphy is more focused than Kalman on the ethics and the downfall — the continued political counsel to Johnson from the bench, the failed 1968 Chief Justice nomination, and the Wolfson Foundation retainer that Life magazine exposed and that forced the 1969 resignation. More prosecutorial in tone, it is the essential companion for the ruin, if not always the fairest guide to the man. William Morrow.
The 1968 mass-market bestseller — a sitting Supreme Court justice telling a nation on fire when law-breaking protest is defensible and when it isn't. No other justice has published anything like it while serving; within eighteen months its author had been forced from the Court. Free to read at the Internet Archive.
Kalman — author of the definitive biography on this shelf — returns to Fortas with new sources: the fullest modern account of the 1968 chief-justiceship filibuster and the 1969 forced resignation, framed as the origin of the modern confirmation war. Oxford University Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Kalman, Abe Fortas — for the whole rise and the balanced account of the fall
- 2.Tinker v. Des Moines — for the 'schoolhouse gate' and students' free speech
- 3.In re Gault — for due process and the rights of children
- 4.Murphy, Rise and Ruin — for the scandal and the resignation up close
Where the Papers Are Kept
The Abe Fortas papers are held at Yale, his law-school alma mater — case files, firm records, and correspondence documenting the New Deal years, the law practice, the intimacy with Johnson, and the Court tenure, though the sensitive materials around the resignation are handled carefully. The base for Kalman's biography. Visit →
Online Resources
Ideas for Further Research
- The advocate and the justice. Fortas argued Gideon v. Wainwright, winning the right to counsel for the poor, and then as a justice wrote Gault and Tinker extending rights to children and students. Trace the through-line from the advocate to the judge — a consistent concern for the powerless before the state — and ask how his brief tenure might be weighed against its abrupt, self-inflicted end.
- The first to be forced out. Fortas resigned in 1969 under threat of impeachment over an outside financial arrangement — the first justice ever driven from the Court by scandal. Examine the ethics of the affair by the standards of its time and ours, and use it to study the evolution of judicial-ethics norms and the still-unsettled question of how a life-tenured justice can be held to account.
- The Chief Justiceship that failed. Johnson's 1968 move to elevate Fortas collapsed in the first successful filibuster of a Supreme Court nomination, amid charges of cronyism and the outside income. Set the episode beside the modern politics of confirmation, and ask whether the Fortas defeat — not later fights — was the true beginning of the Court's transformation into a partisan battleground. Seat lineage: Goldberg §94 → Fortas → Harry Blackmun §98.