Justice's Resignation First Under Impeachment Threat
An article from CQ Almanac 1969
Document Outline
Abe Fortas became the first Supreme Court Justice to step down under threat of impeachment when he submitted a letter of resignation to Chief Justice Earl Warren May 14, 1969.
The resignation, which followed by less than eight months a successful Senate filibuster against President Johnson's nomination of Fortas to be Chief Justice, climaxed a furor brought on by the disclosure earlier in May that Fortas had received and held for 11 months a $20,000 fee from the family foundation of a man later imprisoned for illegal stock manipulation. The resignation was promptly accepted May 15 by President Nixon. Fortas had been named an Associate Justice in 1965 by President Johnson.
According to an article in Life magazine, Fortas in January 1966 accepted a $20,000 check from a foundation established by multimillionaire industrialist, Louis E. Wolfson. In September 1966, Wolfson was indicted for selling unregistered securities. In December 1966, according to the article, Fortas returned the $20,000.
Wolfson was convicted in September 1967 and sentenced to one year in prison and fined $100,000. His appeal for review of the conviction was denied on April 1, 1969, by the Supreme Court, with Fortas taking no part in consideration of the case because his former law firm had on occasion represented Wolfson.
Fortas May 4 issued a statement saying that he did not feel that the fee in question implied any inducement for him to try to influence Wolfson's case.
The disclosure was followed by Congressional calls for Fortas to resign, for investigation of the federal judiciary and for new laws requiring financial disclosure and by the introduction of bills in both chambers designed to discourage similar actions by Justices in the future.
Claims No Wrongdoing. “There has been no wrongdoing on my part,” Fortas wrote Chief Justice Warren. “There has been no default in the performance of my judicial duties in accordance with the high standards of the office I hold.” (For text of Fortas letter, see box next page.)
Senate Majority Leader Mike Mansfield said of Fortas' resignation, “I think that he's done the best thing.” Other Members of Congress made similar comments, complimenting Fortas for stepping down to remove the Supreme Court from criticism.
Moves toward potential impeachment proceedings were under way in the House of Representatives when Fortas resigned.
The U.S. Constitution, which empowers the House of Representatives to initiate impeachment proceedings against Supreme Court justices and the Senate to sit in trial, says: “The Judges, both of the Supreme and inferior Courts, shall hold their Offices during good Behaviour….”, (Art. II, Sect. 1) What constitutes good behavior is not spelled out beyond mention of “treason, bribery or other high crimes and misdemeanors.”
Canon 25 of “The Canons of Judicial Ethics” prepared in 1922 for the American Bar Association by a committee headed by Chief Justice William Howard Taft said:
“A judge should avoid giving ground for any reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute, either to the success of private business, or to charitable enterprises.”
The ABA May 20 released an informal opinion by its Committee on Professional Ethics which held that Fortas' conduct was “clearly contrary” to the Canons.
Chairman Emanuel Celler (D N.Y.) and ranking Republican William M. McCulloch (Ohio) of the House Judiciary Committee May 15 said Fortas' resignation removed any reason for investigation by their committee.
Controversy Persists. Repercussions in Congress persisted, however. Criticism extended to the Administration's handling of its part in the affair as well as to Fortas' and other Justices' actions.
Rep. Robert Kastenmeier (D Wis.) said the Judiciary Committee should investigate the role of the Justice Department in the matter. Rep. H.R. Gross (R Iowa) said he hoped a federal grand jury would investigate Fortas' outside activities.
Rep. John R. Rarick (D La.) said the question in his mind was “how many more should resign for the same reason.” And Rep. W.E. Brock (R Tenn.) asked a review by the high Court of decisions in which Fortas cast a deciding vote.
Historic Week. Here are major events of the week preceding the Fortas resignation:
Sen. Robert P. Griffin (R Mich.), who led the fight to defeat Fortas' confirmation as Chief Justice in 1968, and Reps. Robert Taft Jr. (R Ohio) and Gerald R. Ford (R Mich.) May 8 introduced bills to require financial disclosure by Supreme Court justices and federal judges.
Sen. John J. Williams (R Del.) and Rep. Clark MacGregor (R Minn.) May 8 introduced bills to deny tax-exempt status to foundations making or offering payments to federal or state officials.
It was reported May 8 that the Criminal Division of the Justice Department was investigating the relationship of Justice Fortas to Wolfson to determine whether there had been any violation of federal law.
Justice Fortas, declining to comment on any part of the controversy, spoke May 8 in Boston and May 10 in Richmond, Va.
Attorney General John N. Mitchell, reportedly on orders from President Nixon, met with Chief Justice Earl Warren apparently to press for Fortas' resignation.
Mitchell reportedly told Warren that “far more serious” information against Fortas would become public unless Fortas resigned.
Mitchell and Chief Justice Warren confirmed May 12 that they had met May 7, but Mitchell denied he was directed by the President to meet with Warren.
Impeachment Threatened. Rep. H.R. Gross (R Iowa) announced May 11 that he had articles of impeachment against Fortas ready to present to the House within a “reasonable” time, if the Justice did not resign. The articles, Gross said, accused Fortas of malfeasance, misconduct and impropriety.
Sen. Walter F. Mondale (D Minn.) May 11 became the first Democratic Senator to say publicly that Fortas should resign. Chairman Celler of the House Judiciary Committee asked Fortas to give some further explanation in response to the charges being made against him.
Sen. Paul J. Fannin (R Ariz.) said May 12 that a “reliable source” had informed him that Fortas would resign soon from the Court. Sen. James B. Allen (D Ala.) called for both Fortas and Justice William O. Douglas to resign because of activities he described as “judicial hustling.”
Fortas, still making no further comment on the rumors around him, spoke in his hometown of Memphis, Tenn. May 12.
In a shift of 1968 positions in regard to Justice Fortas, Sen. Sam J. Ervin (D N.C.), who opposed Fortas' appointment as Chief Justice, called for caution in dealing with the charges against him while Sen. Joseph D. Tydings (D Md.), one of Fortas' leading supporters during the 1968 hearings, called for his resignation.
Tydings, chairman of the subcommittee on improvement in judicial machinery, May 13 called for Fortas' immediate resignation. He said that no explanation could repair the damage which the uproar over the Fortas-Wolfson relationship had done to the judicial system.
Sen. John J. Williams (R Del.) said May 13 that even if Fortas did resign, the “inference” which had been made through the press that the Justice Department had “more serious” information regarding Fortas should be dealt with. “In fairness to Justice Fortas,” he said, “this inference of additional charges should not be left hanging…. If there is further evidence a resignation would not justify its being ‘brushed under the rug’; rather it should be openly presented, and the accused given an opportunity to refute it.”
Justice Fortas May 13 cancelled an appearance he was to make that night before the First Circuit Judicial Conference in New Castle, N.H.
Congressional Inquiry. Rep. Clark MacGregor (R Minn.), after consultation with Mitchell, proposed a preliminary inquiry by the House Judiciary Committee.
A Justice Department statement, while indicating no objection to a House investigation, emphasized that cooperation “would be guided on statutory and constitutional powers and obligations imposed upon each branch.”
Chairman Celler of the House Judiciary Committee, told the House, after receiving MacGregor's proposal, that a course of action had been chosen.
On May 15 the Fortas letters were made public.
Features
Text of Fortas Letter Explaining Resignation
Following is the text of the May 14 letter of resignation from Justice Fortas to Chief Justice Earl Warren:
My dear Chief Justice:
I am filing with you this memorandum with respect to my association with the Wolfson Family Foundation, and a statement of the reasons which in my judgment indicate that I should resign in order that the Court may not continue to be subjected to extraneous stress which may adversely affect the performance of its important functions.
As you know, I have delayed issuing a detailed report or announcing my decision until it could first be communicated to the members of the Court. In my judgment, this was the only proper course open to me as an Associate Justice of this Court, because of the Court's position as a separate and independent branch of the government under the Constitution. Because of the Court's recess, this report was not possible until yesterday.
In the spring or summer of 1965, before I was nominated as Associate Justice of the Supreme Court, my law firm represented New York Shipbuilding Corporation, a company controlled by Mr. Louis E. Wolfson, with respect to various civil claims. Later in the summer of 1965, and also before my nomination, my firm was retained in connection with some securities problems of Merritt-Chapman and Scott Corporation, of which Mr. Wolfson was Chairman of the Board.
I became acquainted with Mr. Wolfson and he told me about the Wolfson Family Foundation and his hopes and plans for it. He knew that its program—the improvement of community relations and the promotion of racial and religious cooperation—concerned matters to which I had devoted much time and attention.
Mr. Wolfson stated that he intended to increase the Foundation's resources, and he hoped that the Foundation might expand its work so as to make unique and basic contributions in its field. As we proceeded in our discussions, Mr. Wolfson suggested that he would like me to participate in and help shape the Foundation's program and activities. I told him I was interested in these objectives and that I hoped we would continue our discussions.
I became a member of the Court in October 1965. Shortly thereafter, Mr. Wolfson was in Washington and again conferred with me about the Foundation's work and my possible association with it. I again indicated my interest in the Foundation's program and in expanding its scope, and we discussed the possibility of my participating in the project on a long-term basis. Because of the nature of the work, there was no conflict between it and my judicial duties. It was then my opinion that the work of the Court would leave me adequate time for the Foundation assignments.
The Board of the Foundation met in December 1965, and approved, by resolution, an agreement under which I was to perform services for the Foundation. It was understood between us that the program in question was a long-range one and that my association would be meaningful only if it were on a long-term basis. The agreement, therefore, contemplated that I would perform continuing services, and, instead of fixing variable compensation from time to time for work done, it provided that I would receive Twenty Thousand Dollars per year for my life with arrangements for payments to Mrs. Fortas in the event of my death.
In January 1966, I received a check for Twenty Thousand Dollars under the agreement, and began my association with the Foundation. In June of that year I attended and participated in a meeting of the Trustees of the Foundation at Jacksonville, Florida. It is my recollection that Mr. Wolfson did not attend the meeting. I went from Jacksonville to his farm at Ocala where I had an overnight visit, as I recall, with him and his family.
Later, in June 1966, I reached the decision that the continuing role in the Foundation's work which our agreement contemplated should be terminated. There were two reasons for this decision: My work for the Court was much heavier than I had anticipated and my idea of the amount of time I would have free for non-judicial work had been a substantial over-estimate. I had also learned shortly before informing the Foundation of my decision to terminate the arrangement, that the SEC had referred Mr. Wolfson's file to the Department of Justice for consideration as to criminal prosecution.
I therefore wrote a letter to the Foundation, addressed to its General Counsel, dated June 21, 1966, cancelling the agreement we had entered into, subject to completing the projects for the year. I recited as my reason only the burden of Court work.
In September and October of 1966, Mr. Louis E. Wolfson was indicted on separate charges stemming from stock transactions, and in December 1966, I returned to the Foundation, in its entirety, the sum of Twenty Thousand Dollars previously paid to me. I concluded that, because of the developments which had taken place, the services which I had performed should be treated as a contribution to the Foundation.
Since becoming a member of the Court, I have not, at any time, directly or indirectly, received any compensation from Mr. Wolfson or members of his family or any of his associates for advice, assistance or any reason whatever, except the Foundation fee which was returned.
Since I became a member of the Court, Mr. Wolfson on occasion would send me material relating to his problems, just as I think he did to many other people, and on several occasions he mentioned them to me, but I have not interceded or taken part in any legal, administrative or judicial matter affecting Mr. Wolfson or anyone associated with him.
It is my opinion, however, that the public controversy relating to my association with the Foundation is likely to continue and adversely affect the work and position of the Court, absent my resignation. In these circumstances, it seems clear to me that it is not my duty to remain on the Court, but rather to resign in the hope that this will enable the Court to proceed with its vital work free from extraneous stress.
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. So far as I am concerned, the welfare and maximum effectiveness of the Court to perform its critical role in our system of government are factors that are paramount to all others. It is this consideration that prompts my resignation which, I hope, by terminating the public controversy, will permit the Court to proceed with its work without the harassment of debate concerning one of its members.
I have written a letter asking President Nixon to accept my resignation, effective as of this date.
I leave the Court with the greatest respect and affection for you and my colleagues, and my thanks to all of you and to the staff of the Court for your unfailing helpfulness and friendship. I hope that as I return to private life, I shall find opportunities to continue to serve the Nation and the cause of justice which this Court so ably represents.
Sincerely,
ABE FORTAS
Is There a Balance of Power?
Old questions concerning relationships among the three branches of the Federal Government took new shapes during the controversy surrounding Fortas and historic antagonisms flared again among Congress, the Court and the Executive.
What actions, if any, should the Executive or Legislative Branches take regarding extra-judicial activities of the Court's members?
Should there be one code of ethics for all branches of the Government? Or should members of one branch be expected to adhere to loftier standards than another? And what, precisely, constitutes a conflict of interest?
Is it within the province of Congress to investigate nonofficial activities of Supreme Court Justices; and can the Justice Department instigate or cooperate in such an investigation?
Separation of Powers. The balance and separation of powers among the Congress, the President and the Court as created by the Constitution appeared to suggest that the Court was, as Alexander Hamilton described it, “beyond comparison the weakest of the three departments of power.”
The Constitution gave the President the power to name the Court's members, with the consent of the Senate.
By not specifying otherwise, the Constitution gave Congress the power to determine the size of the Court, the limits of its appellate jurisdiction, and the salaries of the Justices. The House has the power to impeach, or indict, a Justice. Only the Senate can try an impeached Justice.
Despite such apparently extensive control of the other two branches over the Court, within 15 years of its establishment, the Court had asserted far more power than expected.
Chief Justice John Marshall in 1803 wrote a famous opinion (Marbury v. Madison) holding that the Court had the power to review acts of Congress when their constitutional validity was challenged.
The statement that it was “emphatically” the “province and duty” of the Court to say what the law was ignited antagonisms among the Court, the Congress and the Executive which have blazed, to greater and lesser degrees, for the past 166 years.
During the years of the Warren Court, segments of Congress were vexed by Court decisions on a variety of issues, ranging from pornography and apportionment to prayer and the rights of accused persons.
Recent Wrangles. Much of the criticism directed by Congress at the Supreme Court in recent years has in part been sparked by the realization that the Court had assumed, in controversial areas, a leadership role which some thought that Congress had abdicated.
The Court assumed the role in civil rights; the historic Brown decisions in 1954 and 1955 were followed by the Civil Rights acts of 1957, 1960, 1964, 1968 and the Voting Rights Act of 1965.
When Congress did not establish standards for uniform Congressional districts, the Court entered that “political” area, where it had previously declined to go, (Baker v. Carr 1962) to set such standards (Gray v. Sanders, 1963).
The most controversial recent decisions have been those expanding and defining the rights of accused persons, specifying procedural guarantees of those rights which law enforcement officers must observe. Criticism of such decisions as “handcuffing” the police have been widespread. President Nixon, during his election campaign, said that the Warren Court had weakened the forces of order in relation to the criminal forces in society.
Ironically, in juxtaposition with the role played by Congress and the Executive Branch in criticizing a member of the Court, the Supreme Court in the case of Powell v. McCormack in June 1969 ruled that the House had acted unconstitutionally in excluding Adam C. Powell (D N.Y.) from membership in 1967. (See p. 140.)
Fortas Was 41st Justice To Resign Or Retire
Abe Fortas was the 41st Supreme Court Justice to resign or retire from the Court. Of the 96 Justices through history, he was the first to quit under charges of extra-judicial misconduct.
He had neither the years of service nor the disability to entitle him to Judicial retirement pay.
Past Justices quit for several reasons. Most resigning Justices retired in advanced age and after lengthy service. Some 47 died while still serving. Some resigned for reasons of conscience, some to do other work, some because they were too ill to carry on. Three who quit died before their resignations became effective. Charles Evans Hughes served twice and twice resigned. John Rutledge resigned a year and a half after being appointed, but did not attend Court sessions during his tenure; he was appointed to be Chief Justice by President George Washington in 1795, but the appointment was rejected.
Chief Justice Earl Warren in June 1968 tendered his resignation to President Johnson, but it did not become effective then due to the failure of the Senate to confirm Fortas as his successor.
Conscience. Benjamin R. Curtis resigned in 1857 after disagreements with Chief Justice Roger B. Taney over the Dred Scott decision. Curtis, whose brother had argued the case for Dred Scott, advocated freedom for slaves once they were on free territory. Until his death 17 years later, Curtis maintained an impressive law practice which included arguing a total of 54 cases before the U.S. Supreme Court.
John Campbell from Georgia resigned in April 1861 to return to the South, although he opposed secession and had freed all of his own slaves. During the Civil War he administered the Confederacy's conscription law. He was imprisoned at the War's end on a treason charge, but was pardoned four months later by his former colleagues on the Supreme Court.
Tom Clark resigned in 1967 to avoid conflict of interest when his son, Ramsey Clark, was appointed U.S. Attorney General.
Other Work. John Jay left the Court in 1795 to serve as Governor of New York. He was reappointed to the Court as Chief Justice in 1800, but declined. Jay felt the Supreme Court then lacked “the energy, weight and dignity which are essential to its affording due support to the national government.”
David Davis left the Court when he was elected to the U.S. Senate from Illinois in 1877. He took his seat in a Senate equally divided between Republicans and Democrats, where he cast the deciding vote first for one side and then for the other in a number of cases. He went “from the bench to the fence,” according to one critic.
Charles Evans Hughes resigned in 1916 to run for President.
William Rufus Day resigned in 1922 to serve as umpire in the Mixed Claims Commission chosen to pass on claims of U.S. citizens against Germany.
James F. Byrnes resigned in 1942 to serve as chairman of the Economic Stabilization Board.
Arthur Goldberg resigned in 1965 to serve as U.S. ambassador to the United Nations.
Illness. Thomas Johnson resigned from the Court in 1793 because of poor health. President George Washington asked Johnson to serve as Secretary of State, but Johnson's health was too poor for him to accept.
Henry B. Brown suffered failing eyesight and was heavily dependent on readers to keep up with his work before he finally resigned in 1906.
Ward Hunt was helpless from a stroke for some time before he resigned in 1882.
Charles Evans Whittaker gave physical exhaustion as his reason for resigning in 1962.
Several Justices were named to the High Court but did not take their seats.
Robert Harrison (1790), Levi Lincoln (1811), John Quincy Adams (1811), William Smith (1837), and Roscoe Conkling (1882), like John Jay on his second appointment, were appointed and confirmed but declined to take their places.
One Justice Impeached
The only Supreme Court Justice to be impeached was Samuel Chase. In 1804 the House charged him with “misconduct in trials impairing the confidence and respect for the courts,” but he was acquitted by the Senate.
Besides Chase, one President (Andrew Johnson), one Senator (William Blount), one Secretary of War (William Belknap) and seven federal judges have been impeached, but only four, all of them judges, have been convicted.
Document Citation
"Justice's Resignation First Under Impeachment Threat." In CQ Almanac 1969, 25th ed., 136-37. Washington, DC: Congressional Quarterly, 1970. http://library.cqpress.com/cqalmanac
Document ID: cqal69-1247815
Document URL: http://library.cqpress.com/cqalmanac/cqal69-1247815
