the fury among liberals over news of an inverted flag – a “Stop the Steal” symbol – flying in Supreme Court Justice Samuel Alito’s yard was the latest in a constant barrage of ethical controversies linked to the Court.
Over the past year, the media uncovered extravagant trips and gifts that Justices Alito and Clarence Thomas received from wealthy benefactors, often without disclosing them as required by federal law. With more than $4 million in donations over the past two decades, Thomas has far surpassed other judges, according to Fix the Court, a watchdog group that promotes judicial ethics and transparency. And the revelations have not been limited to conservative judges: Sonia Sotomayor’s staff apparently pressured institutions hosting her appearances to buy her books. (Thomas and Alito have defended their actions, and the Supreme Court has said its staff helps judges comply with ethical guidelines.)
These scandals arise directly from a failed opportunity to impose a binding code of ethics on judges after an explosive scandal in the late 1960s forced Judge Abe Fortas to resign. While his peers pressured Fortas to step away from the Court and the incident sparked efforts to clarify the code of ethics that applies to the federal judiciary, these efforts were fatally flawed.
They left it up to the judges to decide how to follow those guidelines. And time and time again, judges have held that while they voluntarily subscribe to parts of the guidelines, they retain absolute discretion over their implementation. By acting as their own judges, judges have protected their ethical decision-making from third parties and other judges. As a result, the Court’s ethical principles have remained vague, unenforceable, and largely exempt from scrutiny.
Fortas’s ethical entanglements began months after he became an associate justice in August 1965, when the Wolfson Foundation, run by Louis Wolfson, a pioneering corporate raider, hired him to act as a consultant for $20,000 a year. Not only was the sum unquestionably high for a part-time position, totaling more than half of Fortas’s salary, but the long-term elements of the deal seemed even more suspect. The foundation agreed to continue paying Fortas after his eventual retirement from office and, upon his death, the annual compensation would revert to his wife.
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Fortas’s legal assistant warned him about the inappropriateness of the agreement, but the court dismissed such concerns. Only after the Justice Department charged Wolfson with securities fraud in the fall of 1966 did Fortas change course and return the only payment he had received.
On October 28, 1968, a low-level bureaucrat tipped off LIFE. William Lambert of the magazine on Fortas’ connection with Wolfson. The information came just days after a filibuster in the Senate (the first time the parliamentary weapon had been used against a Court nominee) thwarted Fortas’ rise to the Supreme Court presidency. Lambert was intrigued by the possibility of discovering more about the embattled justice.
The journalist’s investigation progressed in fits and starts. Crucially, on April 10, 1969, he approached Deputy Attorney General Will Wilson. Instead of getting more information, Lambert unwittingly gave the new Nixon administration the ammunition he needed to launch a project to ideologically remake the Court. Wilson admitted this to Fortas’s biographer years later. “I knew what kind of potential coup we had,” he recalled, because “quite frankly, we wanted Fortas out of the Court.”
After receiving the go-ahead from William Rehnquist, then head of the Justice Department’s Office of Legal Counsel, investigators discovered that Fortas had broken no laws and had legitimately recused himself in an appeal involving Wolfson, thus avoiding a conflict. of interests. Although Wolfson may have mentioned Fortas’ name in his dealings with prosecutors and asked for help from the justice system, Fortas had never intervened on his behalf. But the timing of Fortas’s association with Wolfson and his excessive payments for a part-time position seemed suspicious, especially after the Senate had uncovered a similar compensation package months earlier for a course Fortas taught at the Law School of the American University.
On May 4, Lambert’s story appeared in LIFE, publicly revealing Fortas’ deal with Wolfson.
Following instructions from President Richard Nixon, Attorney General John Mitchell skillfully leaked additional damning details to the press. Each new piece of information triggered a new round of recriminations, turning even Fortas’s Democratic defenders against him: “Fortas must resign,” Maryland Senator Joseph Tydings pronounced on the Senate floor. “He must resign immediately.”
As the media hounded Fortas at his Georgetown mansion, several judges and jurists, along with the American Bar Association, joined the growing chorus of condemnations. Judge Hugo Black’s wife aptly recorded her mood in her diary: critics, she wrote, “were clamoring for her scalp.”
While Fortas’s detractors demanded his resignation under threat of impeachment, the magistrates decided to handle the matter internally. On May 7, Nixon sent Mitchell to meet with Chief Justice Earl Warren to share documentation about the Fortas-Wolfson relationship. After the meeting, the chief justice told his assistant: “He can’t stay.” Warren then met privately with his colleagues to call for Fortas’ ouster. The chief justice, one former law clerk noted, was “very disappointed” and “disillusioned” and felt that Fortas’s “credibility… had been fundamentally damaged beyond repair.” At Warren’s urging, Black urged Fortas to resign “for the good of the Court.”
Yielding to his wishes, just 10 days after the LIFE article was published, Fortas became the first judge to resign amid scandal.
Throughout the nation’s history, the Court had operated under limited oversight and weak ethical directives. But with the shocking and unprecedented outcome that places the question of judicial ethics at the center of American life, the New York Times Times He anticipated that the Fortas imbroglio “could have a more lasting impact.”
Read more: Breaking Supreme Court ethics rules as judges come under attack
Warren’s concern about the public’s perception of the Court led him to order the Judicial Conference, an administrative body, to strengthen the judicial branch’s ethical standards. Prompted by Fortas’ resignation, the ABA also reconsidered a set of advisory principles forged in 1924. Working on parallel tracks, the ABA tightened its Code of Judicial Conduct in 1972. A year later, the Judicial Conference adopted the ABA proposals with some minor modifications.
The fallout from the Fortas affair also led Congress to update the statute governing recusals in 1974, paving the way for updates to the laws and codes governing judicial ethics and financial disclosures over the next half century. Although “significantly less strict” than those applied to officials outside the judiciary, according to a Senate Subcommittee in 2021, these changes improved the fragile ethical framework that existed in 1969.
However, there was a fatal flaw in these changes: while they applied to lower court judges, they were not binding on the judges themselves. And that might not have been possible, even if these bodies had tried hard to do so. The Court – unlike the lower courts – was created by the Constitution, not by Congress. This can place judges outside the reach of the various codes and laws that govern judicial behavior. And short of impeachment, which has not been used against a judge since 1804, Congress may have no other way to hold judges accountable. Chief Justice John Roberts Jr. made this abundantly clear in 2011. While he gives Congress the power to create lower courts, he wrote in a year-end report, “the Constitution creates only one court, the Supreme Court.” ”. This “fundamental difference,” he continued, precluded the application of any external restraint in the high court.
The result has been years of ethical indiscretions and political ties for the justices. In 2004, for example, the late conservative Antonin Scalia ignored criticism for participating in a case involving his friend, then-Vice President Dick Cheney. Then, in 2012, liberal Justice Elena Kagan refused to recuse herself from the monumental Affordable Care Act case despite having served as attorney general in the Obama administration.
Only after pressure spurred by the recent avalanche of revelations did the judges finally succumb and establish a Code of Conduct last November. The Senate Judiciary Committee echoed other criticisms, noting that while the code was progress, it still fell short of the standards applied to other federal judges, produced advisory guidelines rather than mandates, and lacked “any mechanism.” of significant application.”
That leaves the judges to make their own decisions, and there is little anyone, including their siblings, can do to force them to act. It took a renowned jurist like Warren to convince the justices to act in unison in the Fortas case, an undertaking that may never be repeated even in the face of major ethical failures.
Though initially defiant, Fortas agreed to “resign in the hope that this will allow the Court to proceed … free of extraneous tensions,” he wrote to Warren, and that it will no longer “adversely affect the work and standing of the Court.” His sacrifice was ignored. The Court’s refusal to develop a binding code of ethics after his downfall stains the judicial body to this day, leaving an ethical cloud hanging over decisions handed down by the Court and calling into question its legitimacy.
Michael Bobelian is a journalist who has written about the Supreme Court, legal issues and history for Washington. MailThe Angels Times, Forbes.com and other publications. His most recent book is Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the forging of the modern Supreme Court.
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME hereThe opinions expressed do not necessarily reflect the views of TIME editors..
