|Former Associate Justice of the U.S. Supreme Court|
From: October 4, 1965 – May 14, 1969
|Nominator||Lyndon B. Johnson|
|Spouse(s)||Carolyn E. Agger|
Abe Fortas (1910-1982) was the only U.S. Supreme Court Justice to be forced to resign, after serving for only four years (1965-1969). He was a close personal friend of President Lyndon B. Johnson, and they communicated frequently while Fortas was on the Supreme Court and Johnson was President. Johnson had hired Fortas when he was an attorney in Texas in 1948 to obtain Supreme Court intervention to preserve Johnson's fraudulent victory in the Democratic primary for U.S. Senate. Fortas persuaded U.S. Supreme Court Justice Hugo Black to intervene in favor of candidate Johnson, and forever Johnson viewed Fortas as the greatest attorney. In work for another client, Fortas successfully argued that criminal defendants have a right to appointed counsel at taxpayers' expense in Gideon v. Wainwright (1963).
Johnson convinced Justice Arthur Goldberg to become ambassador to the United Nations in 1965 so that he could appoint Fortas. The following year Fortas cast the deciding vote in the landmark Miranda v. Arizona decision. Fortas wrote the majority opinion In Re Gault (1967), giving juveniles the same procedural protections in juvenile court that were previously reserved only for adults.
Fortas's biggest impact was probably in legalizing pornography. A former attorney for pornographers before he became Justice, Fortas even ruled in favor of one of his former clients. Dozens of pro-pornography decisions were rendered during Fortas's tenure on the court.
When Chief Justice Earl Warren announced in 1968 that he would retire on the condition that a replacement were chosen, Johnson picked Fortas. This selection of a crony offended even Democrats in the Senate, and they refused to confirm him. Disclosure of how Fortas accepted a large outside lecture fee discredited Fortas further. Johnson withdrew the nomination.
There is debate over whether the Senate actually filibustered the Fortas nomination before it was withdrawn. C. Boyden Gray stated that after opposition to Fortas developed, the Senate merely had a test vote that showed only 47 in favor of Fortas, less than even a simple majority. Hence a filibuster was unnecessary and did not occur. Gray explained that his clerkship with Warren in 1968-69 depended on failure of the Fortas nomination, so Gray was watching this very closely.
In early 1969, Life magazine ran a shocking expose about how Fortas had received $20,000 and a promise of annual payments for the rest of his life, and payments to his wife after he died, by a wealthy person facing conviction for insider trading. This scandal resulted in calls for impeachment. Fortas resigned from the bench in 1969 but denied any wrongdoing. The law firm that he started, Arnold, Fortas and Porter, refused to take him back and removed "Fortas" from its name.
- FBI Silvermaster file, Volume 133 November 1947. Contacts of Solomon Lischinsky of UNRRA with Harry Magdoff, Robert Miller with Duncan Aikman, Randy Feltus, and Abe Fortas. At this time the New York grand jury sessions had resumed, and Miller wanted Fortas' advice as to a possible appearance before the jury.