Dishonest Abe; how LBJ's favorite Supreme Court justice became the prototype of Washington's valueless lawyers - Abe Fortas, Lyndon B. Johnson

Washington Monthly, Dec, 1990 by Allan J. Lichtman

Dishonest Abe

Imagine a man with great abilities and strong convictions, but few, if any, principles. He would lack the internal gyroscope to harmonize his disparate beliefs or guide his personal conduct. Ends would always sanction means, and contradictions could be rationalized or simply ignored.

This is the Abe Fortas that emerges from the pages of Laura Kalman's carefully researched and well-written biography of the public man. (*1) It is precisely this kind of man who would falsely believe that he could simultaneously serve the most powerful private interests and promote the public good.

The Fortas story provides an inside perspective on the transformation of American public life that followed World War II and proves that history can still teach by moral example. Unfortunately, the reader has to work too hard to find lessons that should be readily evident after 400 pages.

Kalman's book is notable for its through research, narrative depth, and intelligent commentary on Forta's personal style and philosophy (or lack thereof). But the big picture is often lost in the detail, a weakness that is made more glaring by the lack of a thematic introduction or a synthetic conclusion. Her book also follows by just two years another lengthy Fortas biography, Bruce Allen Murphy's Fortas: The Rise and Ruin of a Supreme Court Justice, that raverses much of the same territory. Both authors combed through vast archival material, but Kalman had privileged access to Fortas's personal papers. Her book contains new information and analysis, but no startling revelations or striking new interpretations.

The strength of Kalman's book is the depth in which she traces Fortas's odyssey from New Deal whiz kid to fallen Supreme Court justice, expertly revealing his different roles and personae. After a brilliant career at Yale Law School, Fortas quickly rose to the top of the New Deal bureaucracy, becoming undersecretary of Interior at age 31. After World War II he fluidly made the transition to power lawyer and LBJ confidant. But he is largely remembered as the first Supreme Court justice to resign under allegations of improper conduct.

Fortas, Kalman shows, was the preeminent moral relativist. For five years he loyally served Secretary of the Interior Harold Ickes. But just after leaving Interior he had "a convenient lapse of memory" when called upon by Congress to corroborate Ickes's charges taht President Truman's appointee for undersecretary of the Navy had sought to trade political contributions for the leasing of oil rights. Fortas helped Lyndon Johnson steal the senatorial election of 1948 and promoted voting rights for minorities. He advised President Johnson on domestic and foreign issues, drafted speeches, and even helped with legislation while serving on the Supreme Court.

Relativism likewise guided Forta's approach to the law, both as advocate and arbiter. As the managing partner of Arnold, Fortas, and Porter, he felt he could in good conscience represent polluters, chiselers, and cigarette companies, because everyone deserved representation, no matter their character or practices. Never mind that other former New Deal lawyers--Benjamin Cohen, Joseph Rauh, Clifford Durr--had chosen careers that did not focus on aiding the rich and powerful.

As a Supreme Court justice, Fortas tended to reach decisions based on his personal convictions then to search for justification in precedent and social science. His brilliant advocacy made him one of the most influential members of the Warren Court but also earned him the enmity of purists like Justice Hugo Black, who believed that a consistent judicial philosophy should guide decisions of the Court.

Much of the significance of the Fortas story lies in his transitional role in forging a new relationship between business and government and in the connections between his prior career and his downfall as a justice. These themes are not fully explored in Kalman's work.

The author fails to describe adequately the new Washington in which Fortas operated and the policy implications of his corporate practice. Prior to World War II, big business came to Washington largely to keep government off its back. During the war, business crowded into the capital for a different purpose: to gain contracts, concessions, and favors from the agencies that now directed the economy. And business stayed after 1945 to reap the enormous profits generated by the creation of a global economic and strategic system dominated by the United States. To cite one example: In 1945 the Export-Import Bank was given lending authority of $3.5 billion (more than one-third of the entire federal budget for 1940) to aid foreign purchases of American goods.

Corporate America successfully battled the few New Dealers remaining in government to get around the regulations adopted in the 1930s and to ensure that private enterprise, not public agencies, controlled the new economic order. By using the knowledge and connections they had acquired in public service on behalf of corporate America, former New Dealers like Abe Fortas and Thomas Corcoran ("Tommy the Cork") weren't simply continuing government's "coexistence with big business" that had been part of the New Deal. They were selling out the New Deal objective of placing the public interest ahead of purely private gain. Kalman largely misses the point that the Washington lawyer couldn't represent corporations during business hours and then change clothes and advance liberal ideals during his spare time. Those ideals were being shredded by his defense of clients' interests.