"We won't withdraw the nomination. I won't do that to Abe." Though we couldn't get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. "With a majority on the floor for Abe, he'll be able to stay on the Court with his head up. We have to do that for him." Fortas also wanted the majority vote.... On October 1, after a strenuous White House effort, a 45–43 majority of senators voted to end the filibuster, short of the 67 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination.
Durham's defense had been denied because the District Court had applied the M'Naghten Rules, requiring that the defense prove the accused did not know the difference between right and wrong for an insanity plea to be accepted. Adopted by the British House of Lords in 1843, generations before the origins of modern psychiatry, this test was still in Common use in American courts over a century later.
Fortas was born in Memphis, Tennessee, the son of Rachael/Ray (née Berson) and Wolf/William Fortas, a cabinetmaker. He was the youngest of five children. His parents were Orthodox Jews. His father was born in England, to parents from Russia, and his mother was Russian-born. Fortas acquired a lifelong love for music from his father, who encouraged his playing the violin, and was known in Memphis as "Fiddlin' Abe Fortas". He attended public schools in Memphis, graduating from South Side High School in 1926. He next attended Southwestern at Memphis, a liberal arts college now called Rhodes College, graduating in 1930.
Fortas mostly had good working relations with his fellow justices although they worried that he talked to President Johnson too much. Fortas clashed with his fellow Associate Justice Hugo Black during much of his time on the Court. The two had been friends since the 1930s, and Black helped Fortas' wife Agger consent to his appointment to the Supreme Court. However, once both men were on the Court, they disagreed about the manner in which the Constitution should be interpreted and found themselves on opposing sides in the Court's opinions most of the time. In 1968, a Warren clerk called their feud "one of the most basic animosities of the Court."
Fortas left Memphis to enroll in Yale Law School. He became Editor in chief of the Yale Law Journal and graduated second in the class of 1933 (second only to another Memphian, Luke Finlay). One of his professors, william O. Douglas, was impressed with Fortas, and Douglas arranged for him to stay at Yale to become an assistant professor of law.
During the Red Scare of the late 1940s and early 1950s, Fortas came to widespread notice as the defense attorney for Owen Lattimore. In 1950, Fortas often clashed with Senator Joseph McCarthy when representing Lattimore before the Tydings Committee, and also before the Senate Internal Security Subcommittee.
In 1945, Fortas was granted a leave of absence from the Department of Interior to join the Armed Forces of the United States. According to his official biography, within a month, Fortas was discharged because of an arrested case of ocular tuberculosis. Later in 1945, he was appointed by President Harry Truman as an advisor to the U.S. delegation during the organizational meeting of the United Nations in San Francisco and at the 1946 General Assembly meeting in London.
In 1946, after leaving government Service, Fortas founded a law firm, Arnold & Fortas, with Thurman Arnold. Former Federal Communications Commission commissioner Paul A. Porter joined the firm in 1947, and after the appointment of Fortas to the Supreme Court, the firm was renamed Arnold & Porter. For many years, it has been one of Washington's most influential law firms, and today is among the largest law firms in the world.
In 1948, Lyndon Johnson ran for the Democratic nomination for one of the two seats in the U.S. Senate for Texas. Johnson won the Democratic primary by only 87 votes. His opponent, former governor of Texas Coke R. Stevenson, persuaded a federal judge to issue an order taking Johnson's name off of the general election ballot while the primary results were being contested. There were serious allegations of corruption in the voting process, including 200 votes for Johnson that had been cast in alphabetical order. Johnson asked Fortas for help, and Fortas persuaded Supreme Court Justice Hugo Black to overturn the ruling. Johnson then won the general election and became a U.S. Senator.
Fortas was known in Washington circles to have a serious interest in psychiatry, still a controversial subject at the time. In 1953, this expertise led to his appointment to represent the indigent Monte W. Durham, whose insanity defense had been rejected at a lower court trial two years earlier, in an appeal before a U.S. Court of Appeals.
In 1963, Fortas represented Clarence Earl Gideon in his appeal before the Supreme Court. Gideon, a poor man from Florida, had been convicted of breaking into a pool hall. He could not afford a Lawyer, and none was provided for him when he asked for one at trial. In its landmark ruling in Gideon v. Wainwright, the Supreme Court held for Gideon, ruling that state courts are required under the Sixth Amendment to provide counsel in Criminal cases for defendants unable to afford their own attorneys or lawyers.
A portrait of him was placed in Yale Law School while he was still alive, underwritten by an anonymous donor. Fortas served as a longtime member of the board of Directors of Carnegie Hall, including while he was on the Supreme Court. He also served on the board of the Kennedy Center since its opening in 1964.
In 1965, Lyndon Johnson, by then the President of the United States, persuaded Supreme Court Justice Arthur Goldberg to resign his seat to become the U.S. Ambassador to the United Nations because the President wanted Fortas for that position. Johnson thought that some of his reforms (the "Great Society") could be ruled unconstitutional by the Court and felt that Fortas would let him know if that was to happen. Johnson and Fortas did collaborate while Fortas was an Associate Justice. Fortas co-wrote Johnson's 1966 State of the Union speech.
During his time on the Court, Fortas led a revolution in US Juvenile justice, broadly extending the Court's logic on due process rights and procedure to legal minors and overturning the existing paradigm of parens patriae in which the state had usurped the parental role. Writing the majority decision in Kent v. United States (1966), the first Supreme Court case that evaluated a Juvenile court procedure, Fortas suggested that the existing system might be "the worst of both worlds."
Fortas elaborated on his critique the following year in the case of In re Gault (1967). The case concerned a 15-year-old who had been sentenced to almost six years (until his 21st birthday) in the Arizona State Industrial School for making an obscene phone call to his neighbor. Had he been an adult, the maximum punishment he could have received was a $50.00 fine or two months in jail.
In 1968, the rules of the Senate required the approval of two thirds of senators present to cut off debate (the rule was later changed to require approval of three fifths of the membership of the Senate, or 60 senators given the membership of 100). The 45 to 43 cloture vote to end the Fortas debate included 10 Republicans and 35 Democrats voting for cloture, and 24 Republicans and 19 Democrats voting against cloture. The 12 other senators, all Democrats, were absent. The New York Times wrote of the 45 to 43 vote for cloture: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote." The next President, Republican Richard Nixon, appointed Warren Burger the next Chief Justice. David Leonhardt of The New York Times called Johnson's nomination of Fortas "one of the most consequential blunders in modern American politics," as the role of Chief Justice has been held by conservatives appointed by Republican Presidents ever since.
Fortas's seat on the Supreme Court was vacant for nearly the court's entire 1969–70 term. President Nixon eventually appointed as his replacement Harry Blackmun after the previous nominations of Clement Haynsworth and G. Harrold Carswell failed.
In 1970, Louis Wolfson surreptitiously taped a private telephone call with Fortas. The transcript of this call was disclosed by Wolfson's Lawyer, Bud Fensterwald, to Washington Post reporter Bob Woodward in 1977. The Washington Post subsequently published several excerpts from the transcript, including language suggesting that Fortas might indeed have spoken with President Johnson about a pardon for Wolfson, but there is no evidence that it was a quid pro quo rather than a voluntary intervention for a friend. Wolfson was convicted of violating federal securities laws later that year and spent time in prison.
At Fortas & Koven, Fortas also kept two notable non-paying clients: preeminent cellist/composer Pablo Casals and Lyndon Johnson. Johnson and Fortas remained great friends, with the latter often visiting the former President at his ranch near Stonewall, Texas until his death in 1973. Fortas was asked to donate his papers to Johnson's presidential library by Lady Bird Johnson, but he replied that his correspondence with Johnson had always been kept in strictest confidence. According to his law partner Howard Koven, Fortas once consulted with Martin Scorsese on the legality of language Scorsese wanted to use in a movie. During this period, John L. Ray (a partner at Manatt, Phelps & Phillips and former at-large member of the Council of the District of Columbia) interned for Fortas while attending the George Washington University Law School.
The Puerto Rican actor José Ferrer portrayed Fortas in the film Gideon's Trumpet (1980).
Fortas died from a ruptured aorta on April 5, 1982. His memorial Service was held at the Kennedy Center with Isaac Stern and Lady Bird Johnson in attendance.
After Fortas's resignation, no one filled the "Jewish seat" on the Supreme Court until Ruth Bader Ginsburg was appointed in 1993.
The debate on Fortas's nomination had lasted for less than a week, led by Republicans and conservative southern Democrats, or so-called Dixiecrats. Republican Senator John Cornyn noted in 2003 that several senators who opposed Fortas asserted at the time that they were not conducting a perpetual filibuster and were not trying to prevent a final up-or-down vote from occurring. Public debate occasionally still occurs over whether Fortas would have been confirmed in a simple majority vote. The Fortas vote is seen as an early precedent for later filibusters of judicial nominees.