In Memoriam: Abe Fortas

Rex Lee*


Abe Fortas, Associate Justice of the Supreme Court of the United States from 1965 to 1969, died at his home in Washington, D.C. on April 5, 1982. He was 71 years old, but even for a man whose career had been so rich, so varied and so fruitful, his death cannot be said to have come in the fullness of time. Only a few days before, he had argued before the Supreme Court and neither his appetite for work nor his powers showed any signs of diminishing.
To recall the details of his life is to exhibit, as the historian Burckhardt said, only the "underside of the tapestry": the knots and stitches, not the whole work. Abe Fortas was animated by a warmth, a compassion, a profound gravity that could be felt, that cannot be captured in words, but that made him who he was and whom we remember.

Abe Fortas was born in Memphis, Tennessee on June 19, 1910. His Orthodox Jewish parents had emigrated from England. His father was a cabinetmaker who was also a sometime shopkeeper and jeweler. Abe was the youngest of five children, and his family's modest circumstances dictated that any achievement he enjoyed would be self-made. He worked his way through high school by playing the violin in a small dance band. The violin began as a source of pleasure, became a means of self-support along with part-time work in a shoe store, and remained a passion throughout his life. His academic record led to a scholarship at Southwestern College, a Presbyterian institution in Memphis. There he was president of the drama and debating clubs and leader of the school orchestra. With a near-perfect academic record, he won a scholarship to the Yale Law School, which he entered in 1930 at the age of 20.

Propitious circumstances and the relentless application of his remarkable ability made Yale the turning point of Fortas' life. He led his class academically, was Editor-in-Chief of the Law Journal, and authored a brilliant student note at the direction of William 0. Douglas, then a young Sterling Professor of Law, who would later call Fortas "my prize student" and who would become an intimate friend for life.

Fortas was appointed assistant professor of law upon his graduation in 1933, but for the next four years his world had two centers, New Haven and Washington. During summers and semesters when he was not teaching, he worked at the Agricultural Adjustment Administration at the behest of two other Yale faculty members who had been drawn by the New Deal, Thurman Arnold and Wesley Sturges. In 1934, Fortas joined Douglas at the new Securities and Exchange Commission as a consultant. He became an important collaborator with Douglas in the preparation of a study of protective committees that led to major legislative revisions in reorganization proceedings under the Bankruptcy Act. Three years after joining the Commission, Fortas left the Yale faculty In the meantime, he had married Carolyn Agger. She, too, became a brilliant student at the Yale Law School and after her graduation in 1933, began an outstanding career as a tax lawyer that has continued to the present day.

In 1939, at the age of 29, Fortas became General Counsel to the Bituminous Coal Division of the Department of the Interior. Two years later, he became Director of the Division of Power in the Department. In that capacity, he met a young congressman named Lyndon B. Johnson, who was interested in a proposed power project in his home state of Texas. The introduction led to a life-long friendship which included Fortas’ representation Johnson in the contested Texas Senatorial election of 1948.

Talented young men, of whom Fortas was one of the best, were able to rise quickly in the New Deal. In 1942 at the age of 32, Fortas became Under Secretary of the Interior. His legal abilities had been firmly established. In the new post, he demonstrated the judgment and force required to become a successful second in command to Secretary Harold Ickes, the self-styled curmudgeon of the Roosevelt administration. Fortas won Ickes' trust so quickly and to such a degree that he frequently substituted for the secretary at Cabinet meetings.

With the declaration of war after Pearl Harbor, the business of the Interior Department acquired new gravity. The Department was charged with administering the removal of Japanese Americans from the West Coast and with overseeing the administration of martial law in the Hawaiian Territory Fortas fought a determined, though unsuccessful battle to prevent the relocation and internment of the Japanese-Americans. In later years he would tell associates that he was prouder of his efforts in that cause than in any other he undertook in more than a decade of government service. And with Ickes, he also fought to ameliorate the harshest aspects of martial law in Hawaii during the war.

Fortas' tenure in the Interior Department was briefly interrupted when he resigned to enlist as an apprentice seaman in the Navy. Rejecting any high-level desk assignment in the service, he was in boot camp when a persistent and serious eye ailment compelled his release; he was reappointed to his still-vacant post as Under Secretary.

When the war ended, so did the New Deal. In January 1946, the law firm of Arnold and Fortas was organized in Washington, D.C. Its purpose, as Fortas later recalled in a tribute to Thurman Arnold, "was to provide a means for its two partners to make a living." For almost 20 years, Fortas managed the firm and built it into one of the leading institutions in the city and in the country Two of Fortas' most important victories were for clients whom he represented by court appointment. His representation of Monte Durham in 1954 by appointment of the United States Court of Appeals for the District of Columbia Circuit, led to a decision that for its time was a landmark in the modern attempt to bring into closer proximity legal rules and scientific knowledge concerning insanity Less than a decade later, again by appointment of the court, he convinced the Supreme Court that Clarence Earl Gideon was entitled under the Constitution to a lawyer to defend him in state court for a petty offense. Both cases were constitutional watersheds.
Abe Fortas was an advocate not only of the powerful and the penniless, but also of the arts. If his professional passion was craftsmanship, his private passion was music and art. The two merged symbolically in the form of his desk at the firm which was made from a Victorian grand piano. He was an effective supporter of the National Endowments for the Arts and for the Humanities. He arranged for Pablo Casals to play at the White House, and in later years he helped direct the John F. Kennedy Center for the Performing Arts.

He once said that the only thing he could not live without was his music. Though he played for pleasure, his musical sense and skill were of a high order, and he played the violin and viola regularly with the talented professionals who were his friends in the Sunday evening sessions at his home that he called "the 3025 N Street Strictly No Refund Quartet." A month after Fortas' death violinist Isaac Stern led a memorial concert at the Kennedy Center in memory of the man who worked to make the Kennedy Center a vital force in the arts, who with Stern, successfully fought the destruction of Carnegie Hall and who helped make the Hirschhorn Museum a reality.

Abe Fortas was a man of rare completeness—patron and practitioner of the arts, successful corporate lawyer and superb advocate, defender of the poor and the persecuted. His legal renown came as "Washington lawyer" but not of the breed sometimes thought to provide clients with income more than advice. Fortas knew Washington from the inside, but his success rested on an intuitive knowledge built from the ground up of how bureaucracies worked and thus, how they needed to be addressed. When an elevator car carrying lawyers, judges and administrators was trapped between floors in the Export-Import Bank on the way to a meeting, Fortas opened the operator's panel, pulled a lever, flicked a switch or two and the car was once again on its way. When his fellow passengers expressed their astonishment, Fortas replied with the mock innocence he occasionally affected, "It's really quite simple, for an insider."

Abe Fortas was not eager to accept appointment to the Court, but President Johnson styled the nomination as a call to "vital duty" and Fortas accepted. The President, noting Fortas' well-known reluctance to assume public office again after 20 years in private life, declared that "the job has sought the man—a scholar, a profound thinker, a lawyer of superior ability and a man of deeply compassionate feelings toward his fellow man."

Justice Fortas took the constitutional and judicial oaths on October 4, 1965 to become the 95th justice to sit on the Supreme Court of the United States. In the four terms that he sat as an Associate Justice he wrote 106 opinions—40 opinions for the Court, 21 concurrences and 45 dissents. His importance to the Court and to the nation during the perilous times in which he sat cannot be measured by output. Part of his value lay, as Holmes said of John Marshall fore that he would retire as soon as his successor was confirmed. The nomination never went to a vote in the Senate because Fortas asked on October 3 that his name be withdrawn from consideration after stormy confirmation hearings where questions were raised about decisions made by the Court both before and during his tenure, and about Fortas' extrajudicial activities. To Fortas, the political implications of the controversy transcended personal vindication. He knew, as he said, that, "If I stayed on the Court, there would be a constitutional confrontation that would go on for months. I felt there wasn't any choice for a man of conscience." Against the urgings of friends and those who recognized the importance of his contribution to the work of the Court, he resigned from the Court on May 14, 1969.

After the resignation, Abe Fortas resumed an active practice as an eminent and valuable member of the bar. The practice was remarkably varied, challenging and consuming. Of particular interest to him was the future of the Commonwealth of Puerto Rico, with which he had a long association and which he represented in his only argument before the Court after leaving it. He continued his manifold activities on behalf of the arts, and he occasionally lectured. Although his work and his avocation seemed to fill a 25-hour day, he always had time for his friends.

The life of Abe Fortas was so full, so rich and lived at such intensity that it is possible we do not fully know the man we have lost. He recognized his own complexity "The Supreme Court," he said, "brings you face to face with the problems of what you really believe, and that accounts for some of the transformations of men on the Court. Maybe if I'd stayed on the Court long enough I'd have discovered a Fortas under the Fortas under the Fortas. But it didn't happen."

Abe Fortas was not so much a man of contradictions as a man of great tensions. An instinctive, emotional passion for justice and fair play underlay his quiet and controlled public reserve; the man who moved so easily in the corridors of power was acutely uncomfortable with the trappings of that power, so much so that he could not bear to ride in the back seat of a limousine alone because he detested the distinction between the passenger and the driver such seating symbolized; and the active and diverse social life that he and his wife so enjoyed was at odds with his lifelong gravity and social concern.

Abe Fortas bore the burden of the same kind of conscience that he perceived in his friend and former partner, Louis Eisenstein: "He believed in man and man's capability He believed—although life could not have been easy for him because he was a sensitive instrument responding too easily, too deeply, too quietly, too passionately to the vibrations of others—not only those whom he knew, whose sorrows impinged upon his life, but also to the unseen multitudes whose problems to him were not abstract, but a personal agony and a personal responsibility" As he said of Eisenstein in that deep, deliberate, somewhat mournful voice which none who heard it can ever forget, "The death of a remarkable man is not just an end. It is also a beginning. His death does not terminate his life. His life continues in each of those whom he has touched, and in thousands whom he never encountered, but whose lives are better and richer because he lived."

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* Reprinted from the Solicitor General's remarks before the Supreme Court of the United States during the Special Session in memory of Justice Fortas on December 13, 1982.

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