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FORTAS: The Rise and Ruin of a Supreme Court Justice

Book Review

December 1, 1988


Melvin L. Burstein Senior Vice President and General Counsel
FORTAS: The Rise and Ruin of a Supreme Court Justice

By Bruce Allen Murphy
William Morrow & Company
Illustrated, 717 pages

When I was a fledgling lawyer in the '60s, one of the prominent attorneys of the day, whom I especially admired, was Abe Fortas. He followed the path to success of many first-generation Americans—scholarship. It paved his way to power and influence in the New Deal and to the success and esteem of his law firm, Arnold, Fortas and Porter. All of this was at a time when the law business was dominated by sedate law firms of Wall Street and Washington that traced their origins to the 19th century and often had no living name partners. His financial success was equalled by distinguished pro bono work in defense of individuals targeted by the McCarthy hearings, such as Owen Lattimore, and defendants in such landmark constitutional cases as Gideon v. Wainwright.

I was delighted when, in 1965, President Johnson appointed him to succeed Arthur Goldberg on the Supreme Court. In 1969 Fortas resigned from the Court in apparent disgrace. Wanting to believe he had been victimized, I suppressed those facts that cast doubt on my judgment. I have since wondered what the Court would have been like had he remained.

Bruce Allen Murphy's hook, Fortas: The Rise and Ruin of a Supreme Court Justice, shattered my illusions. Professor Murphy traces Abe Fortas' rise to preeminence as student, teacher, public servant, practitioner of the law and power broker, followed by his untimely resignation from the Supreme Court, and leaves little doubt that he victimized himself. The author portrays a man driven by ego, ambition, greed and the heady wine of political power.

Fortas' career began on the faculty of Yale Law School following his graduation. Contacts he made there led to his work in the Roosevelt New Deal administration. Contacts made in government service provided both a client and power base that contributed to the success of Fortas and his law firm.

Fortas' reputation and considerable legal skill enabled him to establish his ultimate power relationship by saving Lyndon Johnson's first election to the Senate. Johnson's victory in the 1948 Texas Democratic primary for a vacant Senate seat was being contested and had been blocked by a federal court order. To save the primary and, in effect, the election for Johnson, Fortas had to quickly overcome the order by having the matter referred to state court. He devised a strategy for bringing it before Associate Justice Hugo Black, whom he persuaded to issue the needed order. Thereafter and throughout Johnson's political career, Fortas was among his closest friends and advisers.

When Johnson was still in the Senate, he hoped he would someday have the opportunity to repay Fortas for his service by nominating him to the United States Supreme Court. Finally, in 1965, Johnson had that opportunity, even though Fortas indicated considerable reluctance to serve. Fortas' nomination was readily confirmed by the Senate. It is ironic that a bitter and hostile relationship developed between Fortas and Hugo Black, who had provided the court order that saved Johnson's career.

In 1968, both to continue the record of the Warren Court and to further reward his friend, Johnson nominated Fortas to succeed Earl Warren as chief justice. Unlike his first appointment, Fortas' second was not well-received by many of the Republican and Southern Democratic members of the Senate Judiciary Committee. The confirmation process was brutal as senators, philosophically at odds with the Warren Court and some with apparent anti-Semitic leanings, attacked both Court decisions by Fortas and a relationship with President Johnson that appeared to breach Fortas' constitutional responsibility to keep the judicial branch separated from the executive. (This aspect of the story may temper the sensitivities of those who believe Robert Bork was unfairly treated in his unsuccessful confirmation hearings earlier this year.)

The hearings did not fully reveal Fortas' compulsive need to remain at the center of power, but that issue, coupled with questions raised by fees he accepted while a justice, provided his opposition with the votes needed to prevent cloture of a filibuster to block the full Senate from voting on his nomination. Finally, at Fortas' request, the president withdrew his name.

Although he was treated harshly by the Senate, it is clear that Fortas' continuing greed for power and money provided the material needed to support opponents driven by less than honorable motives. The fee issues uncovered in the course of his confirmation hearings did not come to rest after his name was withdrawn as a nominee for chief justice. In 1969, following the disclosure of one particularly questionable fee arrangement, he resigned from the Court. That was the end of what had been a distinguished legal career.

Professor Murphy's book reveals the attention to detail of a careful and thoughtful researcher. Unfortunately, Murphy's desire to share that detail serves to encumber as well as enhance the book. The detail is often tedious, even confusing—particularly in the beginning—leaving one to wish for the hand of a good editor. While the story's pace resembles that of an exciting mystery as it gets into the Senate confirmation hearings on Fortas' chief justice nomination regrettably, the author's penchant for detail impairs the momentum that might otherwise have been achieved. For example, in a chapter entitled "The Scarlett Letter" (presumably to titillate the reader), he devotes over 30 pages to a tale of Senator Richard Russell's effort to influence the nomination of a successor to Frank Scarlett as a Federal District Court judge, and how it led to the loss of Russell's support for Fortas' nomination. In the guise of a tale of intrigue, he bores and confuses the reader with a story best left to a vignette.

In the early part of the book I hoped and expected Murphy to analyze details of the Fortas story in the fashion of psychoanalytical biographies currently so popular. However, as I got further into the book I thought that he had properly left the reader to do his own evaluation. Given that, I was disappointed that the author attempted an analysis in his eight-page epilogue. The details of the book revealed it was a superficial effort to assess a man who was, on the one hand, very complex and, on the other, rather obvious. In any case, readers could take the facts provided by Murphy and enjoy doing their own analysis.

Notwithstanding the book's shortcomings, anyone interested in Fortas or even the Supreme Court will probably enjoy the book. Anyone without either of those special interests, however, will probably find the book a tedious way to learn about fascinating people in significant eras of the nation's history.