The Law: Activist Fortas

When newly sworn Supreme Court Justice Abe Fortas wrote his first dissent at the end of 1965, the issue involved a minor dispute over a Small Business Administration contract. With characteristic energy, Fortas prepared a meticulously reasoned draft. When it was circulated among his colleagues, two members of the five-man majority found it so persuasive that their view shifted. Fortas’ dissent became the majority opinion.

It was a fitting beginning. In the three years that Fortas has been on the court, his incisive reasoning has propelled him past some of the more senior Justices to a position as one of the court’s most brilliant and intriguing members. Last week the public at large got a clearer view of Fortas’ mind at work as Signet Books published his 64-page pamphlet Concerning Dissent and Civil Disobedience, a compact discussion of the issues that have been raised by what he calls “the most profound and pervasive revolution ever achieved by substantially peaceful means.”

Demoralized Side. Fortas, 58, wrote the booklet during and after a series of speaking trips to college campuses last year. Those trips “got me scared,” he explained. Sympathetic to the aspirations of rebellious Negroes, Viet Nam war protesters and students, he fully endorses their right to dissent; yet he points out that “the motive of civil disobedience, whatever its type, does not confer immunity for law violation. The dissident may be right in the eyes of history or morality or philosophy. But these are not controlling. Just as we expect the government to be bound by all laws, so each individual is bound by all of the laws under the Constitution. He cannot pick and choose.”

Traditionally, Justices do not speak out publicly on issues that may come before them in court, but Fortas’ purpose was not deflected by the precedent. He even overcame an ingrained dislike of the press to grant at least two interviews to explain his position further; this week he will appear on NBC-TV’s Today show. “I had a feeling,” he says, “that only one side was being presented, the side of lawlessness. On the other side was a kind of ideological demoralization.”

Intellect & Influence. Whether as public servant or private counsel, Fortas has never been an easy, friendly man. In his hugely successful Washington law firm of Arnold, Fortas & Porter, his younger associates found him machinelike, testy and hardboiled. Said one when asked for a brief description: “Unpleasant.” Then the man reconsidered. “Meticulous,” he said. On the court, Fortas’ clerks are said to find a similar blend of thoroughness and severity.

His high-powered intellect, combined with a legendary ability as a problem-fixer and a penchant for never repeating a confidence made Lawyer Fortas one of Washington’s most influential private citizens long before his court appointment. It also made him a trusted adviser of President Johnson on everything from the Walter Jenkins scandal to the Dominican crisis. When Arthur Goldberg resigned from the court to move to the U.N., Johnson’s first choice to replace him was inevitably Fortas. It was a political convenience that Fortas also happened to be Jewish and it was the court’s “Jewish seat” that was open.

Violin Drawback. Fortas’ move did not mean any loss of influence with the President. Johnson has continued to consult him almost daily on everything from speeches to major policy decisions. And Fortas’ lawyer wife Carolyn (they have no children) is also a Johnson favorite. Though many of his votes presumably would meet with presidential approval, no one would seriously suggest that Fortas is anything but his own man. Before joining the court, he had a long and distinguished record as a civil libertarian and a defender of State Department employees during the McCarthy era. He argued an insanity case that widened the old did-he-know-right-from-wrong test, and he was the court-appointed attorney who handled the appeal of Clarence Gideon who won for himself and all other indigents the right to a state-supplied lawyer in serious criminal cases.

With such a background, Fortas has inevitably become a member of the court’s so-called activist majority. He has already staked out juvenile law as an area of special expertise and authored the court’s important Gault decision, which extended constitutional rights to young offenders. His compelling advocacy seems certain to increase his judicial reputation. Indeed, it would seem that his move to the court has only one serious drawback. The workload is even heavier than it was in private practice. As a result, though he is an avid and expert amateur violinist, he has reluctantly had to cut back his practice schedule.