In an excellent op-ed for the Wall Street Journal titled “The False Abe Fortas Analogy,” Ilya Shapiro refutes charges from the Left that ethics accusations that have recently been leveled against current justices are even “remotely comparable” to what led Justice Abe Fortas to resign from the Court in 1969. Some excerpts:
Fortas embodied cronyism and corruption, with direct conflicts of interest involving parties with business before the high court and legal advice to a businessman who was investigated, indicted and convicted of federal felonies. He also acted as a regular adviser to a president whose administration, like every administration, was a repeat Supreme Court litigant….
After Johnson appointed Fortas to the high court in 1965, the justice had a private phone line to his patron installed in his chambers. Fortas’s biographer Bruce Murphy counted 254 contacts between the justice and the president from October 1966 to December 1968.
When Chief Justice Earl Warren announced his retirement in June 1968, LBJ tapped Fortas for elevation but miscalculated the politics in that tumultuous election year. Fortas didn’t do himself any favors before the Senate Judiciary Committee, where he denied he had given legal advice to the president or had participated in policy decisions. In the words of another biographer, Laura Kalman, “He simply lied.” …
It also came out during the four-day hearing that American University had paid him $15,000—about $130,000 in today’s money, and nearly 40% of a justice’s salary—to give a series of lectures in the summer of 1968, funded by private sources connected to Fortas’s former clients and partners….
Then, in May 1969, Life magazine revealed that in October 1965, the same month he was sworn in, Fortas had been retained by the family foundation of Louis Wolfson, a former client under investigation for securities fraud. The foundation would pay the justice $20,000 annually for unspecified legal advice, which might have included an attempt to secure a presidential pardon….
The transcript of [a 1970] conversation [between Fortas and Wolfson] confirmed that Fortas, while a member of the high court, was heavily involved in advising Wolfson. At one point Fortas agreed to intervene directly with the SEC chairman, although apparently he didn’t follow through.
Wolfson’s promise of financial support to Fortas might even have been critical to Fortas’s decision to go on the Court in 1965:
The transcript also indicates that there was a letter of July 22, 1965, in which Wolfson offered financial assistance to Fortas if he took a Supreme Court appointment from LBJ. Fortas had told Wolfson that he planned to reject the nomination because of the financial sacrifice. But six days later LBJ nominated him.
Fortas recognized at the time that what he was doing was improper—that his relationship with Wolfson would be construed as follows: “that your giving me and my accepting the foundation post was nothing but a coverup and that what was really happening was that I was taking a gratuity from you in terms of the statute and supplement[ing] my salary. You see? And that is very bad.”
To be sure, much of this had not been established at the time that Fortas resigned. But Fortas had ample reason to fear that it would be.