A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court
Long before his fall, when it seemed as if he and LBJ might roll on forever, Abe Fortas wasn’t your ordinary Supreme Court justice—not when he was gliding around Washington in his chauffeured Rolls-Royce. During the late 1960s justices of the Supreme Court were, as a rule, unseen and pedestrian—that is, they walked—but Fortas had that Georgetown house with the swimming pool. I saw it from the inside once and it was all it was said to be, with the “good” antique furniture and the valuable string instruments including a Guidantus and a 1740 dancing master’s fiddle given to Fortas by Mrs. Wurlitzer and performed on by Isaac Stern.
He had people like that in to dinner and he lived that way—not in a public, publicity-seeking manner, but you heard about him. Other members of the Court may have had as much money and lived like swells but if they did, they kept it to themselves. Fortas let it be known or it got out because he was so close to Johnson that people would pry.
He and his wife, Carolyn Agger, a skillful and enormously successful tax lawyer, lacked the prudence of anonymity. The wife of an associate justice does not brag that many of the expensive pieces of furniture in their house were given to them by their rich friends. A senator can get away with that but the members of the Supreme Court are the cardinals of the American political papacy. Thus William O. Douglas’s liking of young wives has hurt him, and Fortas’s presumed liking of money helped set him up to become the first justice to be forced to resign in disgrace and scandal.
How he ended up on the bench and how he got knocked off it is well told by Robert Shogan. The book suffers from the refusals of Fortas and the principals in the Nixon Administration to hold still for interviews. But by excellent reporting and good, clear, meat-and-potatoes writing Shogan tells us about as much as we’re going to know about this affair until memoirs are written, men die, and private papers are opened.
Amid the obloquy surrounding Fortas’s departure, when even his liberal friends in the Senate had given up defending him, it’s easy to overlook that this man isn’t another crumbbum of the sort Nixon strives to stuff the Court with. The fact that Fortas was so close to Johnson in advising him on Vietnam has hardly made him a sympathetic figure. The evidence is there for us to see Fortas as only another volpine Washington lawyer, who waxed fat on the lambs until Nixon came along and wolfed him down in his turn. It was, after all, Fortas who got LBJ safely through the ballot box stuffing charges in the 1948 Texas primary which put Johnson in the Senate and sent him winging. While he was winging, his lawyer Fortas represented him in everything from his …