Before Clarence Thomas, Abe Fortas resigned Supreme Court over finances

Supreme Court Justice Clarence Thomas is facing mounting scrutiny over his finances, after a ProPublica report documented his lavish donor-funded travel and a Washington Post report revealed that Thomas had reported hundreds of thousands of dollars in income from a defunct real estate firm.

If Thomas were to resign over his financial dealings, he would not be the first justice to do so. The following story, lightly edited for length and style, originally ran in The Washington Post on May 16, 1969.

Associate Justice Abe Fortas resigned from the Supreme Court yesterday, insisting that he had done nothing wrong and was acting only for the good of the court.

President Nixon accepted the resignation at 10 am It was tendered at about 5:30 pm Wednesday while the president was preparing his Vietnam address for national television.

Fortas thus ended 11 days of anguish — personal and for the Supreme Court — that began with a charge that he accepted a $20,000 fee from a proven stock manipulator’s family foundation. The resignation, first by a justice under fire in United States history, was effective Wednesday.

Fortas will not participate further in any of the 50 cases and several hundred petitions on the court’s docket for action. If Fortas has cast crucial votes or written major opinions, the official report will not disclose them.

Fortas’s departure, coupled with the scheduled retirement of Chief Justice Earl Warren, will mean two fewer votes for the activist policies that developed over the Warren Court’s 16 years. It was a political windfall for Nixon, who during the campaign vowed to appoint “strict constitutionalist” judges of a more law-and-order philosophy. The resignation, which averted what could have resulted in the first Supreme Court impeachment proceedings since 1805, was announced first by Fortas through the press officer Banning E. Whittington. This triggered the release of Fortas’s letter of resignation to the president, Mr. Nixon’s reply, a long letter of explanation from Fortas to the Chief Justice and a statement by Warren praising Fortas as a “learned and compassionate Justice” who had made “his personal decision.”

It also prompted a two-page statement by the Justice Department, defending its method of investigating the case and insisting that no deals were made to get imprisoned financier Louis E. Wolfson to talk about his financial relationship with Fortas.

Fortas, in his letter to Warren, said, “There has been no wrongdoing on my part. There has been no default in the performance of my judicial duties in accordance with the high standards of the office I hold.”

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Fortas told Warren that the court’s welfare and maximum effectiveness “are paramount factors to all others” and that he was resigning to end the controversy and spare the court “the harassment of debate concerning one of its members.”

The justice admitted accepting a $20,000 fee from the family foundation of Wolfson, who went to prison last month to serve the first of two stock fraud sentences. He also acknowledged that the payment was the first of a planned lifetime fee arrangement that would pass to his wife, tax attorney Carolyn Agger, after his death.

Since Fortas joined the Court in October 1965, he said, Wolfson “on occasion would send me material problems relating to his problems” with the law, Fortas’s former law firm’s problems had previously been handled. He also acknowledged that Wolfson discussed the matters personally.

But Fortas said, “I have not interceded or taken part in any legal, administrative or judicial matter affecting Mr. Wolfson or anyone associated with him.”

The plan had been for Fortas to “help shape the Foundation’s programs and activities,” Fortas said, to advance liberal causes in which he had long held an interest.

As to the property of the arrangement, Fortas said he saw “no conflict” with his judicial duties “because of the nature of the work.” He said he terminated the agreement — he held on to the first year’s fee for five months longer — in June 1966 for two reasons: He found he had underestimated his judicial workload and overestimated his free time.

Stock fraud indictments were brought in September and October. Fortas gave the fee back in December, he said, without seeking compensation for services already rendered to the foundation “because of the development which had taken place.”

By contrast with yesterday’s letter, Fortas’s May 4 statement left the impression that the fee had been “tendered” on a contingency basis without his resolving to do the work; that it was a one-project arrangement rather than a lifetime income and family security plan.

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While neither statement dealt with the appearance of impropriety that has aroused much of the criticism against Fortas, in detail in Fortas’s most recent statement raised a question for which there was no answer: Would Fortas have survived if he had been more open in the first place?

Nor did the letter provide the key to a prime Washington riddle: Why did the apparently wealthy Fortas, widely regarded as a brilliant and talented lawyer, negotiate for an outside income with a man of Wolfson’s unsavory reputation?

The reaction in Congress and elsewhere was a mixture of relief, regret, hopes for reform and still more cries for investigation. Many said the episode should spur financial-disclosure legislation for federal judges.

Some legislators criticized Attorney General John N. Mitchell for statements since May 4 — when the fee was disclosed — implying the possession of more serious evidence against Fortas but not divulging it.

From the time the Fortas controversy broke with a story in Life magazine, Mitchell has made several official statements. Aides quickly announced that the matter was “under consideration.” A week later, Mitchell confirmed a Newsweek report that he had called on the chief justice. Mitchell added that he had passed along “certain information,” presumably more damaging evidence against Fortas.

Throughout the controversy, Justice Department officials privately insisted that they were not trying to smoke out the justice with officially inspired leaks to [reporters]. They said the publication of the Mitchell-Warren meeting thwarted a process of discreet dealings designed to settle the controversy and avert a constitutional crisis or impeachment.

Wolfson went to prison amid a flurry of interviews, press releases, advertisements and letters all claiming high-level influence and sympathy from important politicians. According to the Life article, Wolfson mentioned Fortas’s name in an effort to reassure a business associate, who was on the verge of becoming a government witness and later did become one, that there was no danger of a successful criminal prosecution.

When the Wolfson fee was disclosed May 4, Fortas issued his brief statement and then sought privacy.

As the justice with supervisory function over the First Circuit, which [encompasses] the federal courts in New England, Fortas was slated to speak at the regional judicial conference banquet on Tuesday night near Portsmouth, NH Instead, he sent along a prepared speech and remained in his Georgetown home to confer with intimate friends.

His continued public silence, however, caused problems for administration officials.

Realizing that the high court could soon become the “Nixon Court” because of the potential for replacing several justices, the executive branch was eager to avoid the bloody impeachment process. They calculated that an unnecessary fight at this stage would only produce political retaliation that might block the path of confirmation for their nominees later. However, several congressmen were threatened to offer impeachment resolutions, and pressure increased in that direction.

The administration has been relishing the prospect of replacing “liberal” or “activist” judges with more conservative ones — so much so that the anti-Supreme Court tone of the election campaign was replaced in recent presidential crime messages by something akin to praise of certain decisions.

At term’s end next month, only three of the five justices who voted for increased safeguards for criminal suspects in the famous 1966 Miranda decision will remain — Hugo L. Black, William O. Douglas and William J. Brennan Jr. Justice Thurgood Marshall has since joined the court and the liberal majority. Justice John M. Harlan, a dissenter in 1966, hinted in a recent opinion that he might not automatically vote to repudiate that decision in a raw test of voting strength.

Thus, while the new Supreme Court could not be expected to accelerate the trend of recent years, neither will it automatically overturn its own precedents just because the court may be dominated by new conservative appointees.

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To some critics of the court, Fortas was an embodiment of the court’s liberal bent. Although he was a late arrival to the Warren Court, replacing Arthur J. Goldberg when Goldberg was drafted by President Johnson as ambassador to the United Nations, Fortas joined the liberal justices and helped carry through the extension of the Bill of Rights to the states.

When Fortas was up for confirmation to replace Warren as chief justice last summer, Sen. Strom Thurmond (RS.C.) criticized him for a criminal law decision that was already 11 years old. The shocked Fortas turned Thurmond away with a soft answer, but his nomination failed to survive a threatened filibuster.

Johnson’s effort to elevate his old friend failed partly because of disclosures that Fortas accepted an unusually large fee, $15,000 for eight summer seminar lectures and a teaching syllabus at the American University law school. A former law partner raised the money from former clients, wealthy friends and business associates.

Fortas’s best known contribution to the law as justice, and apparently his proudest, was his opinion spelling out the constitutional rights of juveniles in the 1967 case of Gerald Gault, an Arizona youth. He also wrote major civil rights and civil liberties opinions and brought his long experience as a corporate lawyer to bear on businesses before the courts.

During the election campaign, Nixon avoided commenting on the Fortas confirmation fight. But he pointed out that he had acquired considerable respect for Fortas’s ability during two appearances before the court two years ago when the president, then a private lawyer, argued an invasion of privacy case against Life magazine. Nixon lost the case, but Fortas agreed with him in a dissenting opinion.

Richard Nixon is considered naming the first woman to the Supreme Court. He was thwarted.

Fortas’s resignation was the disastrous conclusion to judicial service for which he was drafted by Johnson, whose lawyer and trusted adviser he had been for 25 years.

Against his wishes, Fortas was nominated on July 28, 1965. He continued to counsel Johnson, a fact that also contributed to his defeat in the Senate when the president tried to promote him.

Since Fortas was the only justice of the Jewish faith, the resignation seemed to boost the chances of Judge Henry J. Friendly, 65, of the Second US Circuit Court of Appeals. The entire Fortas episode tended to downgrade the chances of many prominently mentioned people who could be called “cronies” of Nixon’s.

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