Path to the Supreme Court
On the afternoon of July 28, 1965, in the East Room of the White House, Lyndon Johnson told the country two things in one breath. 'I have today ordered to Viet-Nam the Air Mobile Division and certain other forces which will raise our fighting strength from 75,000 to 125,000 men almost immediately,' he said; and then, a few minutes on, 'I will very shortly, this afternoon, send to the United States Senate my nomination of the Honorable Abe Fortas to be an Associate Justice of the Supreme Court.' The nominee, the President explained, had 'told me on numerous occasions in the last 20 months, that he would not be an applicant' for any office; but 'the job has sought the man,' and a call to the Court 'is not a call that any citizen can reject.' By Johnson's own later telling he had put it more plainly to Fortas in private: he had just sent fifty thousand men to Vietnam and he was sending Fortas to the Supreme Court. The war and the seat were announced together, and four years later he would be gone from the Court, undone in part by hearings that asked, above everything else, what the justice had gone on doing for the man who made that speech.
Abe Fortas was born in Memphis on June 19, 1910, a child of an immigrant Orthodox Jewish cabinetmaker. The family's country of origin varies with the telling, England in some accounts and Russia in others, and this chapter leaves it there. What every account agrees on is the violin: he learned it as a boy, and by his early teens he was playing in a dance band for money, which is how Memphis came to know him as Fiddlin' Abe Fortas. He finished first in his class at Southwestern, the Presbyterian college that is now Rhodes, in 1930, and went north to Yale Law School, where he edited the Yale Law Journal, graduated in 1933, and acquired the patron of his life in a young professor named William O. Douglas (§79). In 1935 he married Carolyn Agger, who took her own Yale law degree three years later and became one of Washington's leading tax lawyers.
Douglas pulled him into the New Deal and the New Deal made him. The Agricultural Adjustment Administration in 1933; the Yale faculty from 1934; the Securities and Exchange Commission under Douglas from 1935; general counsel of the Bituminous Coal Division in 1939; director of Interior's power division in 1941; and in 1942, at thirty-two, Under Secretary of the Interior to Harold Ickes, an office he held until 1946. Then the firm. With Thurman Arnold, and from 1947 Paul Porter, he built the Washington practice that carried all three names until his own came off it, and in the years when it was dangerous to do so the firm took the loyalty cases: Dorothy Bailey, dismissed from federal service on the word of unnamed informants, whose appeal the firm lost in 1950 with Fortas on the brief; Owen Lattimore, whose defense against Joseph McCarthy the firm ran without fee; Monte Durham, an indigent defendant for whom Fortas wrote the appellate brief that persuaded the D.C. Circuit in 1954 to replace the old insanity test with a modern one.
One client mattered more than the rest. In September 1948 a federal judge in Texas enjoined the certification of Lyndon Johnson as the Democratic nominee for the Senate, over the disputed returns from Jim Wells County that had given Johnson his hairline primary victory. On Saturday, September 25, Fortas telephoned Justice Hugo Black (§76), the Circuit Justice for the Fifth Circuit, and asked him to stay the injunction. On Tuesday the twenty-eighth, Black heard four hours of argument in his chambers and stayed it that afternoon; the Fifth Circuit followed on the merits nine days later, and Johnson went to the Senate. Fifteen years on, the Court itself handed Fortas the case that made the other half of his reputation. Appointed to represent Clarence Earl Gideon, the Florida drifter who had asked for a lawyer and been refused one, he argued on January 15, 1963, from the record itself: 'This record does not indicate that Clarence Earl Gideon is a man of inferior natural talents,' and yet 'no man, certainly no layman, can conduct a trial in his own defense so that the trial is a fair trial.' On March 18 the Court agreed unanimously, and every poor defendant charged with a felony in America has had a lawyer since.
Johnson wanted him on the Court from the beginning, and Fortas kept declining. In July 1965 the President moved Arthur Goldberg (§94) to the United Nations and asked his friend to take the seat; the answer, in a letter of July 19, was that after painful searching he had decided to decline, with a heart full of gratitude. The reasons he gave the First Lady two days later were practical: the firm, a new Georgetown house with a large mortgage, an income five times a justice's salary, and his usefulness to the President as a troubleshooter. Johnson did not accept the answer. Nine days later came the East Room announcement; the Senate confirmed him by voice vote on August 11, and he took his seat on October 4, 1965.
On the Supreme Court
For four terms he was one of the Warren Court's surest votes and one of its best writers. In Kent v. United States (1966) he opened the door to due process for juveniles, insisting that 'there is no place in our system of law for reaching a result of such tremendous consequences without ceremony.' In re Gault (1967) walked through it: 'Under our Constitution, the condition of being a boy does not justify a kangaroo court.' In Epperson v. Arkansas (1968) he struck the state's ban on teaching evolution, finding that 'fundamentalist sectarian conviction was and is the law's reason for existence.' In Powell v. Texas (1968) he dissented for four from a conviction for public drunkenness: 'Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.' And in Tinker v. Des Moines, decided on February 24, 1969, weeks before his fall, he wrote the sentence every schoolchild's lawyer has quoted since: 'It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'
He never stopped being Lyndon Johnson's lawyer. The record, from the Johnson papers and tapes and from his biographers, shows a sitting justice who helped draft the 1966 State of the Union, who was in and out of the White House, and who lobbied senators at the President's request on the war. At his 1968 hearings he told the Judiciary Committee that he had not been advising the President; historians who have read the papers find that he had, and the distance between the testimony and the record is the charge that has followed his name longest. The chapter records both the testimony and the papers.
The fall came in two acts. Earl Warren (§88) offered his retirement on June 13, 1968, effective on the confirmation of a successor, and on June 26 Johnson nominated Fortas for Chief Justice and Homer Thornberry for the seat he would vacate. The hearings opened on July 11, and Fortas, unusually for a sitting justice, appeared before the committee himself. Senator Griffin's Republicans called the nomination a lame duck's; Strom Thurmond screened obscene films the Court had declined to suppress, in what a Nixon aide named the Fortas Film Festival; and the disclosure that Fortas had accepted $15,000, raised from private donors, to teach a summer seminar at American University gave the opposition its ethics. On October 1, 1968, a motion to end debate failed, 45 to 43, in what the Senate's own history calls the first filibuster of a Supreme Court nomination, though scholars still argue whether it was one. Fortas asked that day to be withdrawn, and the next day Johnson complied in a statement that called the Senate's action 'historically and constitutionally tragic' and urged 'that this shall be no precedent.' Warren stayed, and the Chief Justiceship went to Richard Nixon to fill.
The second act needed only ten days. In early May 1969 Life magazine reported that in January 1966 Fortas had accepted a $20,000 check from the family foundation of Louis Wolfson, a financier then under federal investigation, under an arrangement for annual payments for life, and had returned it in December 1966 after the Securities and Exchange Commission referred Wolfson's case for prosecution. The Justice Department assembled its file, and by the standard account the Attorney General carried it to the Chief Justice. On May 14 Fortas wrote to Warren. 'There has been no wrongdoing on my part,' the letter said. 'There has been no default in the performance of my judicial duties.' But 'the welfare and maximum effectiveness of the Court to perform its critical role in our system of government are factors that are paramount to all others,' and it was that consideration, he wrote, that prompted his resignation. Nixon accepted it the next day, effective at once. No proceeding had begun, but no justice before him had left the Court under the threat of one, and the seat sat empty for a year while the Senate rejected two nominees before it went to Harry Blackmun (§98).
The Supreme Court Database records a tenure too short for its drift series, so the program's oldest question has no entry for him; the record ends before the measurement begins. What it does record is a justice at the center of the Warren Court's last majority: across 525 coded votes his liberal share was 72.4 percent against a docket baseline of 63.3, the highest baseline any subject of this program has voted against, for a gap of 9.1 points; his dissent rate of 11.4 ran well below his colleagues' 17.5 on the same cases; his closest colleague across 345 divided cases was William Brennan (§90), at 82.9 percent, and his furthest was the second Justice Harlan, at 40.2.
Arnold & Porter would not have him back; the younger partners blocked it, fearing the clients he would reclaim. He founded a small firm of his own, Fortas & Koven, and practiced for thirteen years. The violin never left him: the Sunday-evening quartet at his house on N Street, which its members named the N Street Strictly-No-Refunds String Quartet, drew Pablo Casals and Rudolf Serkin as visitors, and he served on the Kennedy Center's board from its founding in 1964. On March 22, 1982, he argued before the Supreme Court for the last time, for the Popular Democratic Party of Puerto Rico in Rodriguez v. Popular Democratic Party, and won. He died in Washington on April 5, 1982, of a ruptured aorta, at seventy-one, and was cremated; there is no grave. On April 28 the Court sat in his memory, Chief Justice Burger (§97) presiding and all nine justices present, the institution that had let him go thirteen years earlier keeping the form for the man who had once written its most humane sentences. The ruin is the story everyone tells. Gideon is the one that outlasted it.
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 Bar's memorial, held the Term after his death and printed by the Court as a 36-page pamphlet with a portrait. Not in the U.S. Reports; HathiTrust has it in full view from the Michigan and California copies.
The 1965 appointment told as a case study in cronyism: Johnson's refusals refused, the Goldberg seat emptied for the purpose, and the friend who did not want the job. The carrier of the July 1965 maneuver from the Fortas side, used in the chapter with the Goldberg side alongside. Free at the Mercer repository.
The papers, at Yale: 100.75 linear feet in 204 boxes covering the law professor, the New Dealer, the Arnold & Porter partner, the presidential adviser, the justice, and the patron of music, with an unpublished typescript among the writings. The finding aid is free.
The resignation in a page, from the ABA's magazine: the Wolfson payments, the AU seminar money, the impeachment talk, and Warren's urging. A clean short account of the fall for readers who do not want the two biographies. Free.
The fullest account of the fight that ended Fortas's chief justiceship before it began: Michael Bobelian sets the 1968 nomination against the year of Tet, the assassinations and the campaign, and follows Johnson's manoeuvring, the Senate's first filibuster of a Court nominee, Thurmond's use of the obscenity films, and Nixon's turning of the Court into an election issue. Schaffner Press, 2019, 475 pages. Shogan (TMC-0086) is the contemporary account; this is the one written with the archives open.
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.