Fortas, Abe

Abe Fortas was born in 1910 in Memphis, Tennessee, to a working-class Orthodox Jewish family. He was educated in Memphis's public schools, and became well known locally playing the violin in a number of bands. He left high school early and enrolled at Southwestern College at Memphis, a school affiliated with the Presbyterian Church, from which he graduated first in his class in 1930. A leading Memphis family in the Jewish community, with connections to the Yale Law School, provided Fortas with a scholarship to that institution. He received his LL.B. degree in 1933, graduating near the top of his class and having been elected editor-in-chief of the Yale Law Journal. Immediately upon graduating, Fortas was invited to take a position as a teaching fellow at the Yale Law School, and was eventually appointed assistant professor of law in 1936. He held this position until 1938, teaching courses in business law and corporate finance, often working alongside his mentors and colleagues, including then Sterling Professor of Law William O. Douglas, and future law partner Thurman Arnold. At the same time that Fortas was teaching, he had a small legal and consulting practice in New Haven.

Fortas was at the Yale Law School during the early, powerful years of the school of thought known as "legal realism," and is generally considered a legal realist in his legal, judicial, and political philosophies. In addition to his teaching and law practice, from 1933 to 1938 Fortas found himself at the center of New Deal activities in Washington, and served in a series of positions at the Securities and Exchange Commission, the Public Works Administration, and the Agricultural Adjustment Administration. Fortas often took leaves of absence from teaching at Yale to devote himself to government service and was considered one of the Roosevelt administration's leading and most promising young figures. In 1935, he married Carolyn Eugenia Agger, another young New Dealer, who had also been his student at the Yale Law School.

In 1938, Fortas resigned from the law school faculty and accepted a series of full-time New Deal appointments, eventually becoming under secretary of the Department of the Interior in 1942. Once World War II began, and after repeated requests to be allowed to serve in the military were denied by Secretary of the Interior Harold L. Ickes and also by President Franklin Delano Roosevelt (both of whom considered Fortas too valuable in his current position to take a military assignment), Fortas was finally given leave by Ickes and Roosevelt to resign. Fortas immediately enlisted in the United States Navy as an apprentice seaman in November 1943. He was highly enthusiastic about his service, and wrote colorfully of his experiences and his fellow enlistees, but was honorably discharged for an eye condition soon after reporting for duty. Fortas was subsequently reappointed by President Roosevelt to his still vacant position as under secretary.

While under secretary, Fortas was the second highest ranking official in the Department of the Interior, serving closely alongside Secretary Ickes. Often, when Ickes was out of Washington, Fortas served as acting secretary, attending a number of heated wartime cabinet meetings, and undertaking numerous other cabinet-level functions. Fortas was involved with a broad range of issues, including power production and distribution, natural resource production and allocation domestically and abroad, and the status of inhabitants in American territories, including Alaska, Hawaii, Puerto Rico, and the Virgin Islands. He was particularly concerned with the difficult conditions facing Americans of Japanese descent in Hawaii under the martial law that was imposed following the attack on Pearl Harbor.

After serving as a member of the United States delegation to the formative United Nations conferences, Fortas resigned from government service in 1946 to found the Washington, D.C. law firm of Arnold & Fortas. His partner was Thurman W. Arnold, a former teacher and colleague at Yale, who worked as a Justice Department "trust buster," served as a federal judge, and was a widely read author. The firm soon became Arnold, Fortas & Porter, with the addition of former Federal Communication Commission Chairman Paul A. Porter. The law firm grew rapidly in reputation and power, as did Fortas's role in Washington life. Fortas and Arnold also returned to the Yale Law School to teach courses on business and antitrust law. Fortas was joined in practice by many future political figures, such as Joseph A. Califano, Jr., William D. Rogers, and James W. Symington, as well as by his wife, Carolyn Agger, a highly influential tax lawyer. In addition to representing many large corporate clients, the firm undertook the representation of many of those brought before various loyalty boards and congressional hearings during the "red scare" days of the late 1940s and early 1950s. These clients included Dorothy Bailey, José Ferrer, Owen Lattimore, and John Peters. The firm also represented Ezra Pound in his successful attempt to gain release from Saint Elizabeth's Hospital. Fortas served as appointed counsel in the landmark cases of Durham v. United States (in which the so-called M'Naghten rule for determining criminal insanity was assailed) and Gideon v. Wainwright (in which indigent defendants were given the right to counsel in state criminal felony trials). Fortas found himself appointed to argue these cases as a result of his long-standing advocacy for the rights of the criminally insane and the indigent. He was also a well-known and active opponent of the death penalty. During these years between the late 1940s and 1965, Fortas served as a trustee or director for a wide range of arts and cultural organizations and institutions, government committees, and corporations.

Fortas was nominated as associate justice of the Supreme Court in 1965 by President Lyndon Baines Johnson. Fortas had known Johnson for many years, beginning when both were young New Dealers in Washington in the late 1930s. Fortas then successfully represented Johnson in his contested Senate election in 1948. Fortas drew on his personal relationship with Justice Hugo L. Black, who had supervisory jurisdiction in the federal courts of Texas, clearing the way for Johnson's election to the Senate. The relationship between Fortas and Johnson continued and deepened, with Fortas serving as a close and highly trusted legal, political, and cultural advisor. Fortas was a strong defender of President Johnson, including his often unpopular foreign policy, such as his escalation of American involvement in Vietnam. Despite Fortas's closeness to Johnson, Fortas was not easily persuaded to leave his successful and lucrative law practice to return to government service. President Johnson finally demanded that Fortas accept an appointment, and nominated Fortas to replace Justice Arthur J. Goldberg in the so-called "Jewish seat" on the Supreme Court. There was some skepticism on the part of the Senate that Johnson had nominated someone so closely and personally linked to himself, but Fortas was confirmed with little opposition.

On the bench, Fortas was most often aligned with Chief Justice Earl Warren and the socially liberal wing of the Supreme Court. Fortas, who, unlike many justices, came to the Supreme Court without ever having served on a lower court, was well liked and respected by his colleagues. Fortas's greatest friend and ally on the Court was his old teacher and mentor, Justice William O. Douglas. From 1965 to 1968, many major cases came before the Supreme Court, on such subjects as anti-trust law, criminal law, labor law, the limits of free speech and obscenity, race and desegregation, and the Selective Service system. In the landmark case, In re Gault, Fortas authored the Court's opinion that began to extend to juvenile criminal defendants some of the same due process protections that were then provided to adult defendants. During his time on the Court, Fortas was a popular and often controversial public figure and lectured extensively around the country, particularly on college campuses. A committed social liberal who had lectured and published widely in the years prior to coming to the Supreme Court, he rarely shied away from speaking on the most contentious and divisive issues of the day. His short book, Concerning Dissent and Civil Disobedience, attempted to put the then raging campus protest movement in its historical and legal context.

In June 1968, Fortas was nominated by President Johnson to be chief justice of the United States, in the wake of Earl Warren's planned retirement. The nomination of a close friend by Johnson, in the last months of his faltering administration, was greeted with strong opposition and controversy. Difficult confirmation hearings and eventually a filibuster in the Senate ensued. In October 1968, Fortas asked that his name be withdrawn from nomination. Activities uncovered during Fortas's nomination hearings, including his continued advisory role to President Johnson while Fortas was on the Supreme Court, and Fortas's relationship with convicted financier Louis E. Wolfson and Wolfson's charitable foundation, led to increasing pressure on Justice Fortas. He resigned from the Supreme Court in May 1969, becoming the first justice to do so under public pressure.

Fortas returned to private practice with his own small firm in Washington, while also forming an association with a larger firm in Chicago. He originally hoped to rejoin the firm that he had founded, and was invited to do so by Thurman Arnold and a number of the older partners. He was not, however, welcomed by others. Fortas continued pursuing his extensive musical and cultural interests. Fortas's greatest commitment of time, and the institution to which he most closely associated himself, was the John F. Kennedy Center for the Performing Arts. Fortas was appointed to the board of trustees of the Kennedy Center by President Johnson in 1964, and Fortas remained a member of the board until his death. As a former professional musician and as someone who was associated with such musical luminaries as Pablo Casals and Isaac Stern, Fortas was a powerful advocate for the arts. He was intimately involved with the Kennedy Center, served on the executive committee of its board of trustees, and played a key role in nearly every aspect of the Center's operations. Fortas helped orchestrate extensive fund-raising efforts for the Kennedy Center, including the construction of the Studio or Terrace Theater (which now hosts the Fortas Chamber Music Concerts in his honor). With Roger L. Stevens and others, Fortas organized and directed Kennedy Center Productions, Inc., which brought significant revenues to the Kennedy Center and brought such works as "Annie" and "First Monday in October" to the stage and screen.

In March 1982, Fortas presented oral arguments before the Supreme Court in a case involving a political controversy in Puerto Rico, a commonwealth that had long been one of the key focuses of his legal, political, and cultural lives. Fortas argued this case in front of some of his former colleagues. They now sat on a court that had become very different under the man who became chief justice instead of Fortas, Warren E. Burger. It was the first time that he had returned to the Supreme Court to argue a case since his resignation in 1969. Two weeks later, Abe Fortas died in Washington, D.C. on April 5, 1982.

From the guide to the Abe Fortas papers, 1935-1983, 1956-1982, (Manuscripts and Archives)