The Fortas Affair

In a government under law, Chief Justice John Marshall observed in the early 19th century, a judge must be "perfectly and completely independent, with nothing to influence or control him but God and his conscience." To help protect him from temptation, the framers of the Constitution created a free and independent federal judiciary, with life tenure, a handsome salary and protection from capricious removal or congressional retaliation. The judge's part of the bargain is implicit but clear. He is expected to adhere to moral standards far more stringent than those of the ordinary citizen. As Washington Attorney Joseph Borkin has written, the judge is "the epitome of honor among men, the highest personage of the law." The American Bar Association stipulates that he must be innocent of "impropriety and the appearance of impropriety."

It thus came as a distinct shock to most Americans when LIFE reported that Supreme Court Justice Abe Fortas, an appointee, longtime confidant and private legal retainer of Lyndon Johnson, had accepted a $20,000 fee from the family foundation of Stock Speculator Louis Wolfson, who was then under investigation and is now in jail. Fortas--who admitted that LIFE'S facts were essentially correct--had held the money for almost a year, returning it three months after Wolfson's indictment. Although Fortas had not broken any law, he had clearly been guilty of a gross indiscretion.*

Hands Off. The disclosures hit close to the apex of federal authority at a time when all authority is under challenge. They immediately became the major topic of conversation in Washington, from the corridors of the Capitol to Georgetown cocktail parties. Fortas' friends and fellow Democrats found little to say in his defense. Republicans generally adopted the President's hands-off attitude. Richard Nixon, whose attacks on the Supreme Court's liberal cast figured prominently in his campaign, has been assiduously mending fences with the high court of late.

In their hearts, many Republicans may now feel more strongly than ever that Nixon was right in using his considerable influence as a presidential candidate last fall to block Fortas' nomination as Chief Justice. In public, the G.O.P. was more concerned with avoiding any semblance of vindictiveness against the court's only Jew (though the New York Post, a Jewish-oriented newspaper, called for Fortas' resignation). In fact, Republicans had little reason to involve themselves in the furor. As one White House aide put it: "The feeling around here is that Fortas is going to have to resign, so why get into it?"

The Fortas contretemps may quite possibly be the most serious in the Supreme Court's 180 years. No Supreme Court Justice has ever resigned under pressure. Only one--Samuel Chase in 1804--has been impeached, but on such blatantly political grounds that he was acquitted. Three years ago, it was disclosed that Justice William O. Douglas was receiving $12,000 a year in fees from a foundation linked to Las Vegas gambling interests. However, no one connected with the foundation was in immediate need of highly placed connections, as Wolfson and his associates were.

Lawyers and judges believe that the court's prestige has been damaged by the Fortas affair, particularly as it affects a sizable segment of the electorate that is already disgruntled by liberal court decisions in the fields of desegregation, reapportionment, school prayers, the rights of the accused and obscenity.

"All these things have an adverse effect on the prestige of the court," says Chicago Attorney Albert Tenner, who heads the A.B.A.'s standing committee on the federal judiciary. "The personal lives of the Justices reflect on the court itself." Los Angeles Lawyer Edmund G. Brown Jr., son of California's ex-Governor, maintains: "The court has neither the purse nor the sword, and depends in the final analysis on public confidence." Monroe E. Price, law professor at U.C.L.A., says: "It does affect the prestige of the court, particularly with those people who are worrying about 'law and order.' It gives them just another little hammer to pound away with."

Some observers are concerned that the Fortas case may be used as a pretext for further attacks on the court by its enemies. It could also affect the court's liberal-conservative composition if the disclosures increase pressure on President Nixon to appoint conservatives to fill as many as five vacancies expected to open up in the next few years --including the seats of the Chief Justice and possibly Fortas.

Below the Surface. The LIFE disclosures brought to light other tangential investigations concerning Fortas. The Justice Department began a grand-jury investigation in Cleveland of Fortas' old law firm, Arnold & Porter, in connection with the conviction of an official of one of the firm's client companies for conspiracy to obstruct justice. The offense took place after Fortas left the firm, and the department said that there was no connection with Fortas. The Attorney General's office also began looking into Fortas' outside interests, as did Chief Justice Earl Warren and the House Judiciary Committee. Senator Robert Griffin, spearhead of the successful opposition to deny Fortas' appointment as Chief Justice, hinted LIFE'S story was only the tip of the iceberg. At week's end, Griffin, who stands to reap considerable gain from Fortas' discomfiture, claimed that his office had received a telephoned threat on his life.

It was difficult for most people to fathom why Fortas, an astute attorney and author of a recent book that begins "I am a man of the law," would so jeopardize his position. Yet it was not the first time. Last year the scales against his confirmation as Chief Justice were tipped when Senator Griffin disclosed that Fortas' former law partner had raised $15,000 in speaker's fees for Fortas, and that some of the donors had cases before the high court. Fortas' many connections in high places have gained him a reputation for wheeling and dealing in areas not uncommon for a corporate lawyer but of questionable propriety for a Supreme Court Justice. One fellow lawyer described Fortas as simply "avaricious." It is no secret that Fortas' cigar-smoking wife Carolyn was furious when L.B.J. named Fortas to the bench: he exchanged a law practice worth about $150,000 a year for a Supreme Court post that then paid only $39,500. (Mrs. Fortas, as a member of her husband's old firm, earns a reputed $100,000 a year.)

Next Move. The next move is up to Fortas. No one in Washington is satisfied with his cursory reply to the LIFE article, in which he omitted even any mention of the amount of the fee he had received from the Wolfson Foundation. The reply, said one Washington lawyer, "raised more questions than it answered." Although Fortas stonily refused further comment, he will have to explain his actions more fully if he expects to avoid an investigation. Any move to impeach him would come from the House Judiciary Committee. Its chairman, Representative Emanuel Celler, said that he would give Fortas ample time to clear himself. "Until the dust settles, I'm waiting," Celler said. "There's an old Russian saying that you don't roll up your pants until you get to the river. There should be a very comprehensive statement by Fortas. He owes it to the court and the country." If the House should vote to impeach, the trial would be conducted in the Senate, where a two-thirds vote of those present is needed to convict.

As things stand now, the odds are that Fortas will resign. Still, he may be tempted to fight to protect his name in history. He knows that impeachment convictions are not easily won: only four of the 13 high Government officials impeached in U.S. history have been convicted. Nonetheless, Fortas may decide that the better part of valor is to admit an indiscretion, assert his innocence and quietly fade away.

* Fortas' outside source of income raised again the ugly issue of influence peddling in high Government circles (see TIME ESSAY). It is a common occurrence in Washington. Last week Representative Wright Patman accused Treasury Secretary David Kennedy of maintaining a secret interest in his old Chicago banking firm. In no case, however, has any link been established between these interests and attempts by outsiders to control officials' decisions.

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