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The Cautionary Tale of Abe Fortas

Neil Gorsuch has a lot of friends in Washington. He should manage these relationships carefully.

February 6, 2018

In Wash­ing­ton, polit­ics, as they say, can lead to strange bedfel­lows. And polit­ical friend­ships can span the branches of govern­ment. For instance, Justice Scalia and Vice Pres­id­ent Cheney were hunt­ing buddies. But this friend­ship later raised eyebrows and requests for recusal when a case involving Cheney came before the Supreme Court. Friend­ships can come back to haunt justices.

I star­ted my career as an attor­ney at Arnold & Porter. I knew that the firm star­ted as Arnold, Fortas & Porter. The “Fortas” was Abe Fortas, the one-time Supreme Court Justice who left the high court after just 4 years in igno­miny. No one would really talk about Fortas at the firm.

And now I wonder if his caution­ary tale might reson­ate for the Court’s newest member, Justice Neil Gorsuch, who has come under criti­cism for his rela­tion­ships with sitting Senat­ors. As Charles P. Pierce wrote in Esquire of a trip Justice Gorsuch took with Senate Major­ity Leader Mitch McCon­nell in Kentucky, “don’t even consider the propri­ety of a Supreme Court Justice being paraded around a state like a prize trout.”

What can we learn today from Justice Fortas’s fate? A lot. Abe Fortas’s career as a lawyer could not have had a more prom­ising start as he gradu­ated second in his class from Yale Law School and was promptly hired by Yale to teach. He worked as a lawyer through­out the expand­ing admin­is­trat­ive state. And he was appoin­ted by the Supreme Court to repres­ent Clar­ence Gideon in the historic case of Gideon v. Wain­wright in 1962. Mr. Fortas won the case for his indi­gent client 9–0, and in so doing, he helped estab­lish that the Sixth Amend­ment’s right to coun­sel in crim­inal cases extends to felony defend­ants in state courts.  This allows for court appoin­ted lawyers to crim­inal defend­ants through­out the land.

Then Abe Fortas’s polit­ical star was really on the rise. He was appoin­ted to be an Asso­ci­ate Justice of the Supreme Court by Pres­id­ent Lyndon John­son in 1965. And then luck seemed to shine on him again when Chief Justice Warren decided to retire in 1968. Pres­id­ent John­son then nomin­ated Asso­ci­ate Justice Fortas to become Chief Justice Fortas which required Senate approval.  And that’s when everything went pear shaped.

Justice Fortas was known for his close rela­tion­ship with LBJ, but it wasn’t until his confirm­a­tion hear­ings to be elev­ated to Chief Justice did the close­ness of the rela­tion­ship become fully examined in a public forum. As the U.S. Senate still notes the second Fortas nomin­a­tion hear­ing revealed “[a]s a sitting justice, he regu­larly atten­ded White House staff meet­ings; he briefed the pres­id­ent on secret Court delib­er­a­tions; and, on behalf of the pres­id­ent, he pres­sured senat­ors who opposed the war in Viet­nam.”

And if all of that wasn’t bad enough, the hear­ings also revealed that his former law part­ner Paul Porter (the Porter of Arnold & Porter) set up a gig for Fortas to teach summer school at Amer­ican Univer­sity. That prob­ably would­n’t have been all that contro­ver­sial, except Fortas’s salary wasn’t paid by Amer­ican Univer­sity. Rather former Arnold & Porter clients, many of whom had cases poten­tially head­ing to the Supreme Court paid the summer school salary to Fortas. The payment was $15,000 which does­n’t sound like much today, but was 40% of the salary he earned as a Supreme Court Justice.  Conser­vat­ive Senat­ors with Strom Thur­mond lead­ing the charge, fili­bustered Fortas’s elev­a­tion until he was forced to with­draw his name.

Fortas remained on the Supreme Court for another year when another finan­cial scan­dal sunk his career.  He took $20,000 from the Wolf­son Found­a­tion, which was a family found­a­tion of Louis Wolf­son, who was indicted for secur­it­ies fraud. Justice Fortas returned the money but his repu­ta­tion was ruined and he stepped down from the Court in shame.  His caution­ary tale should teach all Justices that the appear­ance of impro­pri­ety can crush an other­wise stel­lar career.

The Abe Fortas prob­lem isn’t new. Justice Clar­ence Thomas has repeatedly been chas­tised over the years for his taking money from conser­vat­ive groups for vari­ous speak­ing engage­ments.

The newest addi­tion to the Supreme Court, Justice Gorsuch has already kicked up contro­versy for his choices of speak­ing engage­ments. In Septem­ber 2017, he gave a speech at the Trump Inter­na­tional Hotel in DC. This hotel is the subject of multiple lawsuits alleging that the Pres­id­ent’s contin­ued indir­ect owner­ship of the hotel viol­ates the Consti­tu­tion.  These lawsuits are likely headed straight to the Supreme Court.

Justice Gorsuch also spoke with Senate Major­ity Mitch McCon­nell at the Univer­sity of Louis­ville’s McCon­nell Center (named after you guessed it Mitch McCon­nell) in Septem­ber 2017 after McCon­nell held the late Justice Scali­a’s seat open for a year for him. And then in Janu­ary 2018, Justice Gorsuch appar­ently dined with Senat­ors Cornyn and Alex­an­der “to talk about import­ant issues facing our coun­try…” Senator Cornyn is presently number two in Senate Repub­lican lead­er­ship.

Justice Gorsuch is allowed to have friends in DC — even friends is very high places like the Oval Office and the number one and two seats in the Senate. But Justice Fortas thought his power­ful friend­ships were allowed too — until he crossed an invis­ible line where his friend­ships –and of course the money — made him look like he had lost his impar­ti­al­ity as a jurist.  

(Photo: Getty)

(Edit­or’s note: This post was updated on Thursday, Febru­ary 8.)

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.