Significance: Associate justice and nominee for chief justice who resigned from the Supreme Court in disgrace.
A gifted student, Fortas received a scholarship to study at Yale Law School. After graduating in 1933, Fortas taught at Yale and worked for various New Deal government agencies. He worked full-time for the U.S. government from 1941 to 1946, when he went into private practice. Fortas earned recognition as a brilliant legal mind and as an advocate of liberal causes. He successfully argued the case of Gideon v. Wainwright (1963) before the Supreme Court, guaranteeing the indigent a right to counsel in state criminal cases. Fortas was a close friend of Lyndon B. Johnson, and when Johnson became president in 1963, he relied heavily on Fortas for counsel. Johnson wanted Fortas to serve on the Supreme Court, both as an advocate for his Great Society programs and as a source of information concerning the attitudes and opinions that prevailed among the justices. Fortas also had the support of Justice William O. Douglas, whom he had known since his days as a Yale law student. In order to create a vacancy on the Court, Johnson offered Justice Arthur J. Goldberg the United Nations ambassadorship. Goldberg accepted and Johnson nominated Fortas. During his confirmation hearings, Fortas downplayed his close relationship with the president, and he received little opposition from the Senate, which quickly confirmed his nomination. As an associate justice, Fortas served as an advocate for liberal issues. He provided the fifth and crucial vote in the ruling in the 1966 case of Miranda v. Arizona, which required that suspects be informed of their constitutional rights when arrested. Fortas wrote the majority opinion in the 1967 case In re Gault, which concerned the rights of juveniles accused of a crime. In his opinion, Fortas argued that accused juveniles possessed most of the rights of adults. He also wrote the majority opinion in the 1969 case Tinker v. Des Moines Independent Community School District, in which wearing an armband as a sign of protest was protected as a First Amendment right.
During his years on the Court, Fortas remained in close contact with President Johnson, offering him advice on both foreign policy and domestic issues. In 1968 when Chief Justice Earl Warren resigned, Johnson sought to provide a defense against possible future conservative attacks on his liberal programs by nominating Fortas for the vacant position. In order to gain support for the Fortas nomination from southerners who were less than enthusiastic at the notion of a liberal Jewish chief justice, Johnson planned to nominate Texas judge William Homer Thornberry to take Fortas's position as associate justice. The Fortas nomination proved to be a disaster for the Democratic Party. Because Johnson was a lame duck, Republicans had everything to gain by slowing the nomination process in the hope that a Republican would be elected to the White House in the upcoming election. Southerners were not mollified by the Thornberry nomination, and several southern senators voiced their antagonism toward Fortas. Senate hearings revealed the depth of opposition to the nomination. Senators expressed their concern that Fortas's close relationship with the president had constituted a violation of the separation of powers. In addition, Fortas was criticized for his liberal positions. The September, 1968, revelation that Fortas had received $15,000 from wealthy private individuals for teaching a seminar at American University made little difference, as opposition to Fortas had become so intense that he had no chance of being confirmed. Although the Senate Judiciary Committee approved his nomination, Senate Republicans began a filibuster. Fortas asked Johnson to withdraw his nomination, and Johnson complied with his request on October 1. Fortas's trials were not yet over. On May 5, 1969, Life magazine reported that while serving as associate justice, Fortas had accepted $20,000 from the Wolfson Family Foundation for assisting with foundation efforts. Fortas had returned the money after Louis Wolfson was indicted on stock fraud charges. Nonetheless, Fortas's relationship with Wolfson showed a lack of judgment and pointed to possible ethical violations. Fortas quickly issued an unconvincing statement regarding his dealings with Wolfson. He did not reveal that he and Wolfson had originally signed a contract ensuring him $20,000 a year for life, and $20,000 a year to his wife should she survive him. Fortas's enemies, including members of President Richard M. Nixon's administration who hoped to create a vacancy on the Court, went into action. Members of Congress began discussing impeachment. Despite the enormous pressure and media attention, Fortas struggled to retain his position on the Court. However, Fortas's fate was sealed when the Justice Department learned of the lifetime contract with Wolfson. On May 14, 1969, Fortas resigned. He continued to practice law after his resignation. In 1982 the final year of his life, he argued a case before the Court. Although widely recognized as an outstanding lawyer, Fortas showed considerable lack of judgment during his tenure on the Court. His relationship with Johnson went beyond offering advice at times Fortas shared confidential information regarding the operations of the Court. Always concerned with money, he engaged in financial dealings that raised doubts about his ability to serve as an impartial jurist.
- Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
- Kalman, Laura. Abe Fortas: A Biography. New Haven, Conn.: Yale University Press, 1990.
- Murphy, Bruce Allen. Fortas: The Rise and Ruin of a Supreme Court Justice. New York: William Morrow, 1988.
- Shogan, Robert. A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court. Indianapolis, Ind.: Bobbs-Merrill, 1972.
- Urofsky, Melvin I. The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2001.