Doesn’t Anyone Remember Ex-Justice Abe Fortas?
by Rabbi Arthur Waskow
Once upon a time, there was a vigorously progressive Associate Justice of the Supreme Court who was forced to resign for violating a nonexistent ethical rule about money.
His name was Abe Fortas. He was appointed in 1965 to the Court by President Lyndon Johnson, for whom he had been and even continued as Justice to be an intimate friend and consigliore, and he resigned in 1969 under great pressure from President Richard Nixon.
Fortas’ name echoes for me for two aspects of his legal life, And it comes to the fore in the midst of a public debate over the financial dealings of two extremely reactionary Associate Justices. I find myself wondering whether a moderate liberal President is refraining from applying to them the kind of pressure that brought Fortas to resign.
First, my own memories: In the 1950s, Fortas was the lawyer for Owen Lattimore, a professor of Asian studies at Johns Hopkins University. Senator Joe McCarthy accused Lattimore of being a leading supporter of the Chinese Communist revolution — indeed, of being the American who “lost China.” Hopkins was so frightened of McCarthy and so hungry to become the funnel for students to be pro-Establishment operatives at the State Department and the CIA that the University placed Lattimore on involuntary leave. I was one of five or six Hopkins undergrads who gently rebelled by arranging to study with Lattimore weekly for a year, at the fireplace in his exurban Baltimore home.
But Fortas entered macro-history through another door. In 1948, a Texan named Lyndon Johnson ran for the US Senate in the Democratic primary. He won by 87 votes. His opponent got a judicial ruling barring his name from the general election ballot; but Johnson called the successful liberal lawyer Abe Fortas to his defense. Johnson’s name was restored to the ballot, and he won the Senate seat. He also earned the nickname “Landslide Lyndon” — at least from those who dared tweak his swiftly growing power.
President Lyndon Johnson with Justice Abe Fortas, 1968 (US government photo)
Fortas became a member of the liberal law firm Arnold, Fortas, and Porter. He entered my life a second time when Marc Raskin, founding the Institute for Policy Studies where I became one of the initial Resident Fellows in 1963, chose that firm as our institutional lawyers.
In 1965, Johnson used his power to reward his old friend and consigliere Fortas by naming him to the Supreme Court. To accomplish that he had to push and pull Justice Arthur Goldberg to resign from the “Jewish seat” (Cardozo => Frankfurter => Goldberg => Fortas) to become US Ambassador to the UN. But for Johnson, “rewarding” someone else always meant gaining more power for himself. Fortas was to let Johnson know about private conversations among the Justices — and did.
How did we learn this? In 1968, Johnson’s Justice Department indicted Dr. Benjamin Spock (“America’s Grampa,” the intimate companion for America’s mothers in caring for their children), Reverend Bill Coffin of Yale University, and a few others of conspiracy to aid and abet resistance to the military draft that was sending young men to kill and die in Vietnam. Among those “few others” was Marc Raskin, my friend, colleague, comrade, and co-author of “A Call to Resist Illegitimate Authority.”
Marc needed a defense attorney. He thought it made perfect sense to ask the firm “Arnold and Porter.” But they said No.
How could that be? The sterling silver of liberal law, saying “No”? Indeed, younger members of the firm protested. But the elder partners stood firm.
In that way he shone even more luster on the liberal light of the firm, and his wife, Carolyn Agger, a leading tax attorney, was still a partner of the firm.
When Arnold & Porter said No to Marc, the refusal precipitated an internal battle between its posh partners and its young associates. Why? For weeks the partners didn’t talk. But slowly the truth dribbled out: A scandal! Johnson had asked Justice Fortas his advice: Should the President really have the beloved physician indicted — he who was adored by every mother and grandmother in America?
And Justice Fortas responded not by saying, “Lyndon, are you kidding? Are you crazy? The case you’d be creating would be sure to come before the Court! You are setting us both up for a terrible scandal. I’ll go home, you go home, this conversation never happened!!”
Instead he answered, “Sure you can indict him!” — creating the possible Shakespearean scene for actually such an uproar they both should have known would be unbearable.
So the partners didn’t want to take the case, because they knew! Somebody told the young associates. They wanted to take the case, although they knew! And somebody told Marc. So — what to do?
The firm worked out a compromise they offered Marc. The firm would move to sever Marc’s case from the others; moving it from Boston to Washington because his only “criminal” acts were committed right there, in the Department of Justice — banging on that briefcase full of draft cards remember — even though that wasn’t true. Then with the spotlight off him, they’d quietly get the government to drop that case.
Peace would break out between the partners and the young associates! Arnold & Porter would fulfill its duty! Marc Raskin would be freed! Everything would be hunky-dory.
There was only one problem: Marc said No. He would not sever his case from the rest.
So Marc still needed a lawyer. He decided to pursue a “Nuremberg defense.” That is, the trials of the Nazi war criminals at Nuremberg established that citizens of Germany had a positive duty to oppose and resist their government’s criminal acts. Just so for American citizens now.
Well, thought Marc, what lawyer could most effectively present that argument? The Nuremberg prosecutor, Telford Taylor.
He agreed, so Marc at last had his lawyer.,
That still leaves us with Abe Fortas on the Supreme Court. What happened to make him an “ex”?
Two things: the election of 1968, replacing Lyndon Johnson with Richard Nixon, and Fortas’ decision to accept a permanent annual subsidy from a financier who was under investigation for insider trading. Was there a specific rule against such a subsidy? No. But other Justices thought it besmirched the Court, and Nixon passionately wanted to drive the liberal Court to the right. So he applied great pressure, and Fortas quit.
Justice Abe Fortas, 1968 (US government photo)
All this has come to mind because we have two cases of financial smirch before us, on the Court, with the politics reversed. Two extreme right-wing reactionary Justices have accepted gifts of far greater value, and the Presidency has shifted from a neo-fascist to a moderate liberal. The two reactionaries have led the Court to a right-wing cliff, with its credibility about to fall over the edge. Replacing them with moderates would at least place the Court back in the mainstream of a slowly evolving Constitution. At least some hope, in the midst of cataclysmic change — to Planet Earth and democracy itself.
Mr Biden himself has just said, “This is not a normal Court.” The withdrawal of two Justices who have violated ethical rules far more clearly than Abe Fortas did could shift the Court from 6-3 votes to undo every hard-won step to justice, into a 5-4 vote the other way — for a gently evolving Constitution.
Yet there is no evidence of a moderate liberal President applying pressure to force two champions of personal Greed and political Repression off the Court.
Why?
Try asking that question to one person who can ask the President. To call an official staffer who has advised the President on Supreme Court questions, call 202-456-1414 and ask for White House Senior Advisor Cedric Richmond. If you are told you must write him to schedule a call, leave a public comment at the White House by calling 202-456-1111.
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