Abe Fortas

Abe Fortas
Born	Abraham Fortas 19 6, 1910
Birthplace	Memphis, Tennessee, U.S.
Died	Template:Death date and age Washington, D.C., U.S.
Nationality	American
Occupation	Lawyer, jurist
Known for	Associate Justice of the U.S. Supreme Court; Gideon v. Wainwright; In re Gault; Tinker v. Des Moines
Education	Rhodes College (BA) Yale Law School (LLB)
Spouse(s)	Carolyn Agger

Abraham "Abe" Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1965 to 1969. A figure whose career encompassed some of the most consequential legal and political developments of mid-twentieth-century America, Fortas rose from modest origins in Memphis, Tennessee, to become a trusted advisor to presidents, a champion of individual rights before the Supreme Court, and ultimately one of the most controversial justices in the Court's history. He is remembered both for his landmark opinions expanding the rights of juveniles and students and for the ethical scandal that forced his resignation from the bench — the first such resignation by a Supreme Court justice under threat of impeachment. Before joining the Court, Fortas had already earned distinction as the attorney who argued the landmark case Gideon v. Wainwright (1963), which established the right of criminal defendants to counsel, and as a close confidant of President Lyndon B. Johnson, a relationship that shaped both men's careers and legacies.

Early Life

Abraham Fortas was born on June 19, 1910, in Memphis, Tennessee, to William Fortas and Ray Berson Fortas. His father was a cabinetmaker who had immigrated from England, and the family was of Orthodox Jewish background. Fortas was the youngest of five children and grew up in modest circumstances in Memphis. Despite the family's limited financial resources, young Fortas demonstrated exceptional academic ability from an early age.

Fortas developed a love of music during his youth, becoming an accomplished amateur violinist — a passion he maintained throughout his life. In Memphis, he was known locally as "Fiddlin' Abe" for his musical talents. This dual interest in the arts and intellectual pursuits would remain characteristic of Fortas for the remainder of his career.

Growing up in the American South during the 1910s and 1920s, Fortas was exposed to the social and economic inequalities of the era, experiences that would later inform his legal philosophy and his commitment to civil liberties and the rights of the accused. Memphis at the time was a city marked by racial segregation and significant class divisions, and the Fortas family, as working-class Jewish immigrants, occupied a distinctive position within this social landscape.

Education

Fortas attended Rhodes College (then known as Southwestern at Memphis), where he excelled academically and graduated first in his class in 1930. His academic performance at Southwestern earned him admission to Yale Law School, one of the premier legal institutions in the United States.

At Yale, Fortas distinguished himself as an outstanding student, serving as editor-in-chief of the Yale Law Journal. He graduated in 1933 with a Bachelor of Laws degree, again finishing at the top of his class. His performance at Yale brought him to the attention of Professor William O. Douglas, who would later himself serve on the Supreme Court. Douglas became an important mentor to the young Fortas and helped shape his early career in government service. The connection between Fortas and Douglas would prove consequential; Douglas recommended Fortas for several of his early government positions.

After graduating from Yale Law School, Fortas briefly joined the faculty as an assistant professor of law, teaching at the institution where he had so recently been a student. His time on the Yale faculty was relatively short, however, as the opportunities presented by the New Deal drew him to Washington, D.C.

Career

New Deal and Government Service

Fortas's entry into government service came during the expansive era of President Franklin D. Roosevelt's New Deal, when the federal government was dramatically increasing its role in American economic and social life. In 1934, Fortas went to work for the U.S. Securities and Exchange Commission (SEC), where his mentor William O. Douglas was serving as a commissioner. At the SEC, Fortas gained experience in the regulatory apparatus that the New Deal had created to oversee the nation's financial markets.

Fortas subsequently moved to other positions within the Roosevelt administration. He joined the Department of the Interior, where he rose through the ranks to become Under Secretary of the Interior. He served in this capacity in two stints: first from June 23, 1942, to November 16, 1943, and then from January 1, 1944, to January 12, 1946, serving under both President Roosevelt and President Harry S. Truman.

During his time at the Department of the Interior, Fortas briefly enlisted in the United States Navy in 1943, serving as a Seaman Apprentice at Naval Training Station Sampson. His military service was short-lived, and he returned to his civilian post at Interior.

In 1945, President Truman appointed Fortas to delegations that participated in the establishment of the United Nations, giving him experience in international affairs and diplomacy at a formative moment in the postwar global order.

Private Practice and the Gideon Case

In 1946, Fortas left government service and co-founded the Washington, D.C., law firm of Arnold, Fortas & Porter (later Arnold & Porter) with Thurman Arnold and Paul Porter. The firm quickly became one of the most prominent and influential in the nation's capital, representing major corporate clients while also taking on significant pro bono cases. Fortas earned a reputation as a brilliant appellate advocate and a shrewd legal strategist.

A pivotal moment in Fortas's legal career came in 1962, when the Supreme Court appointed him to represent Clarence Earl Gideon, an indigent Florida man who had been convicted of breaking and entering without the assistance of counsel. Fortas argued the case before the Supreme Court in Gideon v. Wainwright (1963), contending that the Sixth Amendment's guarantee of the right to counsel applied to state criminal proceedings through the Fourteenth Amendment. The Court ruled unanimously in Gideon's favor, establishing that states are required to provide attorneys for defendants who cannot afford them in criminal cases. The decision was a landmark in American constitutional law and cemented Fortas's reputation as one of the country's foremost advocates.

Relationship with Lyndon B. Johnson

Fortas's relationship with Lyndon B. Johnson was one of the most significant and enduring political alliances of the postwar era. The two men first developed close ties in 1948, when Fortas represented Johnson in a legal dispute over the 1948 Texas Democratic primary election for the United States Senate. Johnson had won the Democratic runoff primary by a margin of only 87 votes, and the result was contested by his opponent, former Governor Coke R. Stevenson. Fortas successfully defended Johnson's narrow victory in court proceedings, an act that cemented a bond of loyalty and mutual reliance between the two men.

Over the following years, Fortas served as an informal advisor to Johnson on a wide range of legal, political, and personal matters. When Johnson became president following the assassination of John F. Kennedy in November 1963, Fortas's role as a confidential counselor became even more significant. Johnson relied on Fortas for advice on domestic policy, judicial appointments, and even matters related to the Vietnam War.

Supreme Court Justice

On July 28, 1965, President Johnson nominated Fortas to the Supreme Court to fill the vacancy created by the departure of Associate Justice Arthur Goldberg, whom Johnson had persuaded to resign from the Court to become United States Ambassador to the United Nations. Fortas was confirmed by the United States Senate and took the oath of office on October 4, 1965.

As an associate justice, Fortas became known for his support of individual rights, particularly in cases involving the rights of criminal defendants, juveniles, and students. He authored several opinions that expanded constitutional protections in significant ways.

One of Fortas's most consequential opinions came in In re Gault (1967), in which the Court held that juveniles accused of crimes in delinquency proceedings are entitled to many of the same due process protections afforded to adults, including the right to counsel, the right to confront witnesses, and the privilege against self-incrimination. The decision transformed the American juvenile justice system, which had historically operated with far fewer procedural safeguards than adult criminal courts.

Another landmark opinion authored by Fortas was Tinker v. Des Moines Independent Community School District (1969), in which the Court ruled that public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The case involved students who had been suspended for wearing black armbands to school in protest of the Vietnam War. Fortas's majority opinion held that the students' protest was a form of symbolic speech protected by the First Amendment, and that school officials could not suppress student expression unless it materially and substantially disrupted the operation of the school. The Tinker decision remains one of the most cited cases in First Amendment jurisprudence relating to students' rights.

Throughout his time on the Court, Fortas maintained his unusually close relationship with President Johnson, continuing to advise the president on policy matters even while serving as a justice. This dual role as both a member of the judiciary and a presidential advisor raised questions about the separation of powers and judicial independence that would later contribute to the difficulties Fortas faced.

Failed Chief Justice Nomination

In June 1968, Chief Justice Earl Warren informed President Johnson of his intention to retire from the Supreme Court, contingent upon the confirmation of a successor. Johnson, then in the final months of his presidency and having already announced he would not seek reelection, nominated Fortas to succeed Warren as Chief Justice of the United States on June 26, 1968.

The nomination immediately encountered opposition from both Republican and conservative Democratic senators. Critics raised several objections: they questioned the propriety of Fortas's continued advisory relationship with President Johnson while serving on the Court; they opposed what they considered the liberal judicial philosophy embodied by the Warren Court, of which Fortas was a member; and they argued that a lame-duck president should not fill such an important vacancy. During Senate Judiciary Committee hearings, it was also revealed that Fortas had accepted $15,000 for teaching a summer seminar at American University, funded by contributions from former clients and business associates — a disclosure that further damaged his prospects.

On October 1, 1968, the Senate voted 45–43 on a motion to end debate and proceed to a vote on the nomination, falling well short of the two-thirds majority then required to invoke cloture. This was the first successful filibuster of a Supreme Court nomination in American history. The following day, Fortas asked President Johnson to withdraw his nomination. The failed nomination had significant consequences: Warren remained on the Court, and his successor was ultimately chosen by President Richard Nixon, who appointed Warren E. Burger as Chief Justice in 1969. As Senator John Cornyn later observed, the Fortas filibuster set a precedent that would influence future confirmation battles over Supreme Court nominations.

Resignation from the Court

The controversy surrounding Fortas deepened in 1969. In May of that year, Life magazine reported that Fortas had accepted a $20,000 annual retainer from the family foundation of financier Louis Wolfson in 1966. Wolfson was at the time under federal investigation for securities violations, including insider trading, and was later convicted. Although Fortas had returned the money, the arrangement raised serious questions about judicial ethics and potential conflicts of interest.

The revelation triggered a political and legal crisis. The Justice Department, under the direction of Attorney General John N. Mitchell in the newly inaugurated Nixon administration, investigated the matter. According to subsequent accounts, Mitchell pressured Fortas to resign, reportedly conveying the threat that further damaging information could be made public if Fortas did not step down. The FBI maintained files related to the investigation of Fortas during this period.

On May 14, 1969, Fortas resigned from the Supreme Court, becoming the first justice to resign under threat of impeachment proceedings. His seat was eventually filled by Harry Blackmun, who was nominated by President Nixon and confirmed in 1970.

The resignation marked one of the most dramatic falls from power in the history of the American judiciary. As the Brennan Center for Justice later noted, Fortas "left the high court after just 4 years in ignominy," and his case became a cautionary tale about the ethical obligations of Supreme Court justices and the dangers of conflicts of interest.

Return to Private Practice

Following his resignation, Fortas returned to the private practice of law in Washington, D.C. Although he was initially a somewhat diminished figure in the legal community, he gradually rebuilt his practice. He occasionally appeared as an advocate before the Supreme Court — arguing cases before the very justices with whom he had previously served, a circumstance that underscored the unusual trajectory of his post-Court career.

Fortas continued to practice law until his death. He also maintained his lifelong interest in music, particularly the violin, throughout his later years.

Personal Life

Fortas married Carolyn Eugenia Agger in 1935. Agger was herself a distinguished attorney who became a partner at Arnold, Fortas & Porter, specializing in tax law. She was described as one of the most accomplished tax lawyers in Washington. The couple did not have children. Their marriage lasted until Fortas's death in 1982, and the two were regarded as a formidable legal partnership in their own right.

Abe Fortas died on April 5, 1982, in Washington, D.C., at the age of 71. Carolyn Agger survived him and continued to practice law until her own death in 1996 at the age of 87.

Fortas was known throughout his life for his love of chamber music and his skill as a violinist. He performed in amateur chamber music groups in Washington, and his devotion to music was well documented by friends and colleagues. The John F. Kennedy Center for the Performing Arts later established the Fortas Chamber Music Concerts series, which continues to present chamber music performances in his honor.

Recognition

Fortas's contributions to American law, while overshadowed in his final years by the circumstances of his resignation, have been the subject of considerable scholarly attention and reassessment. His opinion in In re Gault is credited with fundamentally transforming the juvenile justice system in the United States by extending due process protections to minors. His opinion in Tinker v. Des Moines remains a foundational precedent in the law of students' free speech rights and is regularly cited in First Amendment litigation.

His role in Gideon v. Wainwright, though he argued the case as an attorney rather than as a justice, is among the most celebrated moments in Supreme Court advocacy. The case established a constitutional principle — the right to appointed counsel for indigent defendants — that reshaped the criminal justice system across the United States.

The Fortas Chamber Music Concerts at the Kennedy Center, established in recognition of his lifelong devotion to music, continue to present performances by internationally acclaimed musicians. The series features performances by leading chamber ensembles and soloists, and its artistic programming reflects the high standard of musicianship that Fortas valued throughout his life.

A 1989 analysis in The New York Times examined the lasting impact of Johnson-era Supreme Court appointments, including Fortas's, on the development of constitutional law, noting the enduring significance of the judicial philosophy that Fortas represented during his time on the bench.

Legacy

The legacy of Abe Fortas is marked by a tension between his substantial contributions to American constitutional law and the ethical controversy that ended his judicial career. As a Supreme Court justice, he authored opinions that expanded individual rights in ways that continue to shape American law decades after his departure from the bench. As a private attorney, his representation of Clarence Earl Gideon before the Supreme Court resulted in one of the most consequential criminal procedure decisions in the Court's history.

At the same time, Fortas's resignation from the Supreme Court in 1969 remains a defining event in the history of judicial ethics. The circumstances of his departure — accepting payments from a financier under federal investigation — established a template for the scrutiny that Supreme Court justices face regarding their financial arrangements and outside relationships. The Brennan Center for Justice has characterized Fortas's story as "a cautionary tale" about the ethical standards expected of members of the nation's highest court.

The failed nomination of Fortas to the position of Chief Justice in 1968 also had lasting political consequences. The filibuster that blocked his elevation was the first successful filibuster of a Supreme Court nomination and set a precedent that influenced subsequent confirmation battles in the Senate. The episode contributed to the increasing politicization of the judicial confirmation process that has characterized American politics in the decades since.

Fortas's close relationship with President Johnson, while it brought him to the pinnacle of the American legal establishment, also illustrated the complications that can arise when the boundaries between the judicial and executive branches of government become blurred. His continued role as a presidential advisor while serving on the Court raised questions about judicial independence that remain relevant to contemporary debates about the proper role of Supreme Court justices in American public life.

Fortas's oral history interviews, preserved in the collections of the Lyndon Baines Johnson Library, provide a firsthand account of many of the events and relationships that defined his career and remain a valuable resource for historians of the Johnson presidency and the Supreme Court.