Justice Fortas: Johnson's Blunder and the End of the Warren Revolution

William Fassuliotis ‘19
Guest Columnist

            Why does a justice of the Supreme Court decide to leave the Court? For some, the ravages of old age make the job impossible; others fear dying on the Court, too busy to have spent their last moments with their loved ones. Some are closely attuned to the politics of the Supreme Court and retire so their replacements will not undo the very decisions they propounded while on the bench. Only one has resigned in disgrace. When he publicly announced his plan to retire in June 1968, Chief Justice Earl Warren said it was solely for reasons of age.[1] Seventy-seven years old, age was certainly one factor, but it was not the primary factor.

President Johnson takes questions at a press conference, flanked by Justice Fortas (right). Photo courtesy the AP.

President Johnson takes questions at a press conference, flanked by Justice Fortas (right). Photo courtesy the AP.

            As the election cycle was coming into full steam, Richard Nixon, Warren’s old California political rival, seemed poised to win not only the Republican nomination for President, but the general election as well. The two still despised each other sixteen years after Nixon undercut Warren and helped Dwight D. Eisenhower win the Republican nomination for president in 1952. Their mutual contempt only increased as Nixon campaigned on nominating judges who would roll back the perceived excesses of the Warren Court. For personal and ideological reasons, Warren could not stomach Nixon choosing his replacement.[2] Instead, Warren’s retirement permitted President Lyndon Johnson, a New Deal liberal, to have an opportunity in the last months of his presidency to solidify the Warren revolution against the coming conservative counter-revolution. Johnson nominated Abe Fortas, an associate justice already on the Court, to replace Warren as chief justice, and Homer Thornberry to replace Fortas. Neither nomination would come to pass; Warren would not get his wish. This is the story of Abe Fortas’ brief time on the bench and the only resignation from the Court in disgrace.

             Born in Memphis, Tennessee, the youngest of five children to two Orthodox Jewish immigrants, Abe Fortas attended Yale Law School where he would become close to future Justice, then-Professor William O. Douglas.[3] Despite graduating second in his class, no firm was willing to hire Fortas because of his Judaism. Douglas would help Fortas find work in D.C., helping implement New Deal programs in the Roosevelt Administration’s infancy. Among other jobs, Fortas worked for the SEC and became one of the youngest undersecretaries at the Department of the Interior. Like many other New Deal government lawyers, his familiarity with the regulations and bureaucracy made him attractive in the private sector. In 1946, he co-founded Arnold, Fortas & Porter (now known as Arnold & Porter Kaye Scholer), where he was extraordinarily successful and known as a behind-the-scenes powerbroker in D.C. His ascent to the Supreme Court can be traced to 1948 when an obscure Congressman from Texas hired him to litigate an election-law squabble. That Congressman was Lyndon Baines Johnson.

            In 1948, Johnson sought a promotion and ran for the U.S. Senate from Texas. During this time in the South, the general election was a mere formality. The real action was in the Democratic Primary—whoever won the primary would become the new senator. LBJ came in second in the first round of the primary, after former Governor Coke Stevenson, but as no candidate had a majority, the party held a runoff election. After all the votes were counted, “Landslide Lyndon” narrowly lead by eighty-seven votes. Both sides accused the other of ballot stuffing and electoral fraud; most historians accept that both sides did indeed try to steal the election. The Texas Democratic Party upheld the result in favor of Johnson, to which Stevenson responded to by suing in federal court.

            The district judge voided the results, and set a hearing for September 21 to determine how to continue. Johnson could not wait long—state law required certification by October 3. Johnson feared that Stevenson would continue the suit to try to keep him off the ballot out of spite, so he called for Fortas and his firm to win the suit. Johnson and Fortas had met before, while Fortas was a government lawyer, but this was the first time they had sustained relations. On September 24, the Fifth Circuit refused to hear an appeal without convening with all members, well after the deadline. Fortas was able to get a hearing in front of Justice Black[4] and convinced Black that federal courts did not have jurisdiction over state elections. On September 28, 1948, Black issued an order to end its restraining order until the whole Supreme Court could hear it, effectively ensuring Johnson would become the senator for Texas. Fortas would become one of Johnson’s main advisors and confidants as LBJ ascended to Senate majority leader, vice president, and eventually president. As a newly installed senator, Johnson told one of his aides “Abe would make a great Supreme Court justice.” Neither could have imagined only a decade and a half later Johnson would be able to carry out those idle musings.

            The problem was that when Johnson assumed the Presidency in 1963 there was no opening on the Court. Of course, as we saw last time with Marshall, a lack of vacancy wouldn’t stop Johnson. An opportunity would arrive on July 14, 1965, when Ambassador to the United Nations Adlai Stevenson died. Johnson’s first choice for ambassador was Harvard economist Kenneth Galbraith. Galbraith did not want the job, and, desperate to avoid it, told LBJ that Justice Arthur Goldberg “was a little bored on the Court,” and suggested him as a replacement. Johnson took to the idea. Goldberg was known as a great negotiator, and this would mean Johnson could put his friend Fortas on the Court. Plus, Goldberg occupied the “Jewish seat” on the Court, which could help explain why Johnson chose Fortas over other candidates.

            But why would a member of the Supreme Court, with lifetime tenure and guaranteed importance, leave for a position as ambassador? Especially Goldberg, who was practically just appointed to the bench by Kennedy in 1962? The sources differ. Most agree that Johnson played to Goldberg’s patriotism. Johnson greatly escalated America’s involvement in the Vietnam War at this time, and he may have intimated that Goldberg could play a role in formulating policy. Goldberg for his part said he was opposed to the Vietnam War and hoped that he could help end it. Other sources suggested Johnson offered Goldberg the vice president position on the Democratic ticket when he ran for re-election in 1968 or even possible reappointment to the court, including possibly as chief justice. In any event, after a little fewer than three years on the Court, Goldberg stepped down to become UN ambassador. After some hesitance by Fortas, Johnson nominated him to the Court. Fortas faced little opposition by the Senate, which approved him by voice vote on August 11, 1965.

            In stark contrast, Fortas’ nomination to replace Chief Justice Warren faced vehement and vigorous opposition. The reasons are complicated in some ways, yet simple in others. For one, his Jewish faith did not help, even though he was the fifth Jewish justice on the Court, and though he had already been approved to the Court without opposition. In the perverse logic of racists, it might be one thing for a Jew to be on the Court as an associate justice, but chief justice was a bridge too far. Like Brandeis before him, it is hard to say this was the primary objection my any one senator (and in fact one Jewish senator supporter of Fortas said he did not believe the opposition to be motivated by anti-Semitism), but it certainly made opposition easier.

            Initial opposition came from conservative senators who opposed the perceived liberalism of the Supreme Court in general and Fortas in particular. Nineteen of the thirty-six Republican senators came out in opposition. No, that is not a typo: of the hundred senators, only thirty-six were Republicans. On a purely party line vote, Democrats were only three votes short of the two-thirds majority needed to end a filibuster. The appointment looked assured when Republican leader Everett Dirksen (R-Ill.) early on came out in approval of the nomination, dismissing arguments against Fortas as “frivolous, diaphanous, and gossamer.” Fortas’ nomination would not be on a party-line vote, however, as many Southern, conservative Democrats opposed the Warren Court as well. The cross-party conservative coalition decried the criminal procedure revolution they thought let criminals off on “technicalities,” as well as the court’s decriminalization of “obscenity.” To hammer the point home, Senator Strom Thurmond (D-S.C.) held a “Fortas Film Festival,” and screened for other Senators the pornographic movies the Warren Court protected from prosecution.

            Another source of opposition came from Johnson’s lame-duck status. LBJ’s nomination came months after he announced he would not run for reelection, weakening his ability to convince senators to vote for Fortas. Opponents of Johnson leapt at the chance, saying the next president should choose the justice, clearly hoping for Nixon to win. Nixon’s role is unclear. Early on, he said that the next president should get to replace Warren, but did not specifically oppose Fortas’s nomination, saying he “would not interfere with the Senate’s right to decide on the nomination.” In September, he came out against a filibuster, but some suspected this was intentionally done late in day to look reasonable for the electorate without actually helping Fortas. Whether Nixon privately encouraged the opposition or not, supporters clearly knew that were Nixon to win with a vacant chief justice seat, he could more easily fulfill his promise to stock the Supreme Court with justices hostile to the Warren Court.

            Another source of opposition came from Johnson’s close ties to his nominees. It was well known that Fortas was a good friend of Johnson’s. Thornberry, the nominee to replace Fortas, was also a longtime friend of Johnson’s who actually took Johnson’s seat in the House when Johnson became a senator. Though Thornberry was a circuit judge when nominated to the Supreme Court, the appearance of cronyism left a sour taste in the mouths of even senators who were otherwise sympathetic to the Warren Court’s jurisprudence. This was amplified when it came out that Fortas continued to advise President Johnson even as a justice. This included helping write speeches (including the 1966 State of the Union), and advising on legislation, violating the spirit of separation of powers between the branches of government. Though this seems obviously wrong now, justices have taken advisory roles to the other branches since the adoption of the Constitution. Possibly, Fortas’s advice differed in degree, as a near-constant presence in the White House as opposed to the occasional letters of other justices. Perhaps it was different only in that it became public while other advice remained private. In any event, Fortas would be one of the last justices to advise presidents on politics while justice, at least that has become public. Making matters worse, Fortas clearly lied to the Senate about how involved he was in advising Johnson, and these lies came to light during the hearings.

            Finally, there were financial scandals. Of particular note were payments from a seminar Fortas taught at American University’s Law School. He received $15,000 for one year (worth over $100,000 in today’s money), over 40% of his $39,500 salary as a Justice. The money for his seminar came from former clients and friends, some of whom had ties to criminal proceedings, and none of whom had any independent relationship with the university. At worst the payments looked like straight up bribery, at best it created an appearance of lack of objectivity (though no evidence ever came that Fortas was actually corrupted). Combined with his lies above, Fortas exuded sleaziness unbefitting a chief justice.

            As these sources of opposition developed over the summer and fall, it became obvious that Fortas could not overcome a filibuster, and even if he could, might not get a majority. To save face, Johnson forced a cloture vote. On October 1, 1968, the Senate voted 45-43 to end the filibuster, well short of the two-thirds majority required.[5] Johnson withdrew the nomination. Fortas was the first, and to date only, justice to be defeated by filibuster.

            And so Earl Warren’s fears were realized, and Richard Nixon narrowly won the 1968 election. Though Warren considered rescinding his retirement letter, he concluded it would be hypocritical and publicly indefensible after he said he was too old. Nixon and Warren agreed that Warren would stay on the Court until the end of the 1968-69 term to avoid an eight-justice Supreme Court. Though bruised, Fortas remained defiant in public and returned to the court. Neither would be on the bench when the sixties came to a close.

            Beyond the American University payment, Fortas had other skeletons in his closet. When Johnson first approached Fortas about becoming a justice, Fortas resisted. Chief among his reasons were concerns about lack of money as a justice and that he would be removed from the “action” he was an integral member of as a partner. Hearing of this, Louis Wolfson, a self-made millionaire, asked Fortas to be a consultant for his foundation in 1966. Wolfson explained that the foundation was to be for the advancement of civil rights and other causes Fortas sympathized with. The two negotiated a lifetime contract, where Wolfson would pay Fortas $20,000 a year for the rest of his life, and his wife’s life if she survived Fortas. This alleviated Fortas’ two worries, and he accepted.

            Wolfson ran into legal trouble with the SEC for various security-law violations, a connection that clearly would cause problems for any justice. Though rumored, this relationship did not come out during the confirmation hearing. Only after would a reporter find enough sources to be confident enough to publicize the accusation. On May 5, 1969, Life Magazine published “Fortas of the Supreme Court: A Question of Ethics,” including accusations Wolfson was motivated to retain Fortas to help avoid legal trouble through Fortas’s connections with the president. Fortas conceded he accepted a payment for the first year, but that he severed the connection after that year and returned the money eleven months later. Lying again, he said this was all the connection the two had.

            Eventually, the Justice Department found the original lifetime contract, showing the connection actually ran deeper. Attorney General John Mitchell privately delivered copies of the evidence to Chief Justice Earl Warren, who remarked to his secretary, “He [Fortas] can’t stay.”

            With calls by Republicans to step down, no Democrats or other supporters defending him, and having lost the faith of his brethren on the Court, Fortas resigned on May 14, 1969, a month short of his 59th birthday. Earl Warren would retire a month later on June 23. The Warren Court, in spirit as well as in name, looked to be at its end. Next time: Richard Nixon’s nominees and his attempt to change the Supreme Court.

[1] In his letter to the President, Warren actually worded his retirement to be “effective at your [President Johnson’s] pleasure.” Johnson responded, “With your agreement, I will accept your decision to retire effective at such time as a successor is qualified,” meaning the nomination hearings occurred while Warren was still on the bench and technically without a vacancy. Arguably the first time a Justice conditioned his retirement on the confirmation of a successor, some Senators argued that a confirmation vote could not even occur without a vacancy. Right or wrong, this position did not win the day, and Warren would stay on the bench until his successor took his spot.

[2] For more on the rivalry between Warren and Nixon: The Inside Story of Richard Nixon’s Ugly, 30-Year Feud with Earl Warren, by John A. Farrell, March 21, 2017.  https://www.smithsonianmag.com/history/inside-story-richard-nixons-ugly-30-year-feud-earl-warren-180962614/ 

[3] I drawing primarily on the works of Bruce Allen Murphy’s “FORTAS: The Rise and Ruin of a Supreme Court Justice,” and Laura Kalman’s “Abe Fortas: A Biography.”

[4] The petition almost did not get to Justice Black. The court clerk at first refused to accept the petition as it refused certain formalities. Desperate to get the petition across, Fortas’ partner, Thurman Arnold, told the clerk if he refused, the lawyers would “effectuate a lodgement.” Not wanting to risk a “lodgement,” the clerk submitted the petition. The threat was an empty one as Arnold had no idea what a lodgement was other than some obscure pleading he remembered from law school. The clerk likely had no idea either.

[5] Like many cloture votes, it is hard to tell if Fortas would have had the same majority had the vote been for confirmation. Many Senators, out of respect for Johnson, “took a walk” and did not vote even though they publicly opposed the nomination. On the other side, some Senators who opposed Fortas voted for cloture anyways.