Abe Fortas was born in Memphis, Tennessee on June 19, 1910. His parents, Woolfe (who later changed his first name to William) and Rachel Berzansky, were born in Russia and Lithuania, respectively. The Fortases were part of the massive immigration to the United States of Jews and Catholics from Eastern and Southern Europe during the first decade of the twentieth century. Abe Fortas’s parents settled in Memphis because Woolfe’s brother was already living there. Fortas was raised as an Orthodox Jew in Memphis, although as a adult he was not a religious person. Fortas studied hard, and obtained a scholarship to attend Southwestern College in Memphis, where he excelled both academically and socially. In 1930, at the age of 20, Fortas entered Yale Law School as a scholarship student. Fortas finished second in his class, and was the editor-in-chief of the Yale Law Journal. In 1933, although appointed to the Yale Law School faculty as a teaching fellow, he moved to Washington and the Agriculture Department, working with the legal realist Jerome Frank. Although Fortas alternated between Yale and Washington for most of the rest of the 1930s, he left Yale permanently for a position in the Department of the Interior, where he eventually was named under secretary. In January 1946, Fortas entered the private practice of law with Thurman Arnold, a former Yale Law School professor, legal realist par excellence and New Dealer. They were joined shortly thereafter by Paul Porter, and the firm of Arnold, Fortas and Porter was created. It is known today as Arnold & Porter, one of Washington, D.C.’s largest and most well respected law firms.
Lyndon Baines Johnson (LBJ) ran for Senator from Texas in 1948. His opponent in the Democratic primary (then a one party state, contested elections occurred in primaries, not the general election), Coke Stevenson, had been a popular governor of Texas. LBJ had appeared to win the primary by 87 votes. Charges of voting fraud in south Texas led Stevenson to obtain an injunction preventing LBJ’s name from appearing on the ballot for the general election, pending a hearing. Although a number of lawyers were involved in determining LBJ’s strategy, it was Fortas who managed the litigation and succeeded in having the injunction overturned. Thereafter, LBJ viewed Fortas as the best lawyer in America, and the relationship between LBJ and Fortas, which began in 1937, became stronger during the 1950s and 1960s. That relationship would eventually lead to Fortas’s nomination to the Supreme Court in 1965. Arthur Goldberg, who had been named to the Court by President John F. Kennedy in 1962, found the Court not to his liking. He resigned from the Court to become Ambassador to the United Nations. Fortas initially declined the nomination, apparently because he was concerned about his personal financial situation. But LBJ told Fortas he was going to nominate him, and, rather reluctantly, Fortas accepted the appointment.
Fortas’s appointment in 1965 ensured the continuation of the Court’s liberal majority. Between 1965 and 1969, the Court decided a number of cases expanding the protections of individual rights in criminal procedure, privacy and juvenile rights cases. Fortas’s general view of judging was to find legal authority to support the conclusion to which he was predisposed. This “realist” approach to jurisprudence was one of the reasons why Fortas and Justice Hugo Black found themselves at odds with one another.
During his time on the Court, Fortas continued to advise LBJ on political matters, both foreign and domestic. In foreign affairs, the Vietnam War was becoming a more contentious and divisive issue. In domestic affairs, the treatment of black Americans, including the protection of civil rights of black Americans, was a defining topic of the 1960s.
In June 1968, at the end of the 1967 Term of the Supreme Court, Chief Justice Earl Warren had Fortas arrange an appointment at the White House, at which time Warren announced his retirement, effective upon the confirmation of his successor. On June 26, LBJ nominated Fortas as Chief Justice. To Fortas’s seat, LBJ nominated a friend from Texas, Homer Thornberry. In July, Fortas erred, appearing before the Senate Judiciary Committee despite the fact that no sitting Justice had ever done so. During those hearings, Fortas lied to the Committee, although he had not yet been caught in that lie. The Senate recessed without voting on the nomination. When Senator Robert Griffin learned in September that Fortas had accepted $15,000 to give some summer school lectures at American University’s law school, money that had been raised by Fortas’s former partners and clients, the nomination was in trouble. In early October, after a vote to end the filibuster on the nomination failed, Fortas asked that his nomination be withdrawn. By 1969, further revelations led Fortas to resign from the Court. A convicted financier named Louis Wolfson had agreed to pay Fortas $20,000 per year for the remainder of his life, an amount that continued until the death of his wife if Fortas died before she did. Fortas received the first check in January 1966, after joining the Court, and though he returned it in December, Fortas’s actions were condemned as ethically improper.
After resigning from the Court in May 1969, Fortas was rebuffed in his attempt to rejoin the law firm he had helped create, although his wife remained a partner in the firm. In 1970, he started another law firm. He practiced law until his death in 1982.
Fortas was both extraordinarily intelligent and politically savvy. He was a great lawyer, and a complex man of many masks.
In 1935, Fortas married Carol Agger. According to Professor Laura Kalman, a biographer of Fortas, Agger told Fortas at the time of their marriage that she did not want to have children. Fortas died on April 5, 1982.