Memphis and the Making of Justice Fortas TIMOTHY S. HUEBNER I feel that my roots are here . . . and Supreme Court. After his controversial where a plant’s roots are determine nomination to be Chief Justice and his its characteristics. resignation from the Court, he continued to Justice Abe Fortas practice law until his 1982 death at his residence in Georgetown. But long before he Speaking at Southwestern at Memphis, became known as a wealthy Washington 19661 power broker, Fortas grew up in an immigrant Abe Fortas, who served on the Supreme Jewish family of modest means in Memphis, Court from 1965 through 1969, is often Tennessee. Justice Fortas was a creature of portrayed as a consummate Washington Washington, to be sure, but he was also in insider. Beginning in the early 1930s and many ways a product of his hometown.2 for his entire career, Fortas lived and worked in the nation’s capital. As a New Deal lawyer, he held positions in the Agricultural Adjust- Growing Up in Memphis ment Administration, the Securities and Exchange Commission, and the Interior The city into which Fortas was born still Department. Afterward, he helped build the bore resemblance to a rough river town. D.C. law firm of Arnold, Fortas & Porter, Located on a bluff in the southwest corner of advising top corporate clients and taking on Tennessee, Memphis lay just across the high-profile loyalty cases during the Mc- Mississippi River from Arkansas and just Carthy Era. Along the way, he assisted Texas north of the Mississippi state line. It had Congressman Lyndon Johnson in winning a grown up as an outpost for lawless flatboat- disputed U.S. Senate election, thus cementing men in the early nineteenth century—a place a lifelong friendship with a future President for brawlers, gamblers, and desperados of that culminated in an appointment to the every sort—and later, as steamboats began to  MEMPHIS AND ABE FORTAS 315 ply the river, it emerged as a bustling center William Fortas initially worked as a for slave traders and cotton planters. Occu- carpenter and cabinetmaker in the Fortas pied by Union forces but spared physical furniture factory, but for reasons that are destruction during the Civil War, Memphis in unknown, in 1919 he parted ways with his the 1870s endured repeated epidemics of older brother to start a business of his own. Yellow Fever, which led to death, desertion, Success seemed to elude him. During the and de-population on a massive scale. But the 1920s, operating out of a small storefront on last two decades of the century brought an South Main Street in downtown, William economic and demographic resurgence, as tried his hand at a variety of businesses— new residents, black and white, flooded into operating a jewelry store, pawn shop, the city from surrounding rural areas. Cotton, clothing store, then a pawn shop again, hardwood, and, of course, river transportation before finally turning his business back into dominated the economy, and the opening of a a jewelry store. As Joseph Fortas’s furniture railroad bridge across the Mississippi River in business prospered and became synonymous 1895, the third-longest bridge in the world at with the Fortas name in Memphis, William the time, transformed the city into a regional struggled to establish a footing for himself hub for trade. By the turn of the century, and his family. During Abe’s childhood, the Memphis topped 100,000 residents, making it family moved twice, first to Linden Avenue the second-largest city in the states of the Old and then to Pontotoc Street—both houses Confederacy. Heavily Protestant and racially were located on the south edge of downtown divided, the city was also known for its ethnic in a mostly immigrant neighborhood—but it and cultural diversity, as significant numbers is not clear that the Fortases were upwardly of Irish, Italians, and Jews called the city mobile. Although they initially owned a home. Despite its rapid growth and rebirth, home, by 1930, William Fortas, sick with high rates of murder and crime still dragged lung cancer, listed no occupation for himself, down the city’s reputation.3 and his family rented the home in which they Abe Fortas’s parents arrived in Memphis lived.6 Describing William Fortas as “a from England in 1905. Woolf Fortas and his linguist, musician, [and] man of letters,” wife Ray, as they were listed in the census, one writer concluded that he “had found the were originally from Russia and Lithuania, hard competitive world too much for him.” respectively, and they came to Memphis to Rachel, who apparently never learned to read join Woolf’s older brother Joseph, who, after and write English, never took a job outside of having immigrated decades before, managed the home, as she devoted herself to the raising a furniture factory in the Bluff City.4 of her family and taking care of her ailing Although Joseph and his family rented a husband. With medical bills and no steady home in the “Pinch” district of Memphis, a income by that time, William and Rachel predominantly Irish and Jewish neighbor- relied on their children and extended family hood on the north end, Woolf and Ray bought for support. Abe later claimed that his family a home on McLemore Avenue on the south had been “as poor as you can imagine,” and side of town. The Fortases, who later that they had to make their way “in circum- appeared in the census as “William” and stances of limited resources and opportunity.” “Rachel,” had three children at the time of There is little reason to think that this was not their arrival—Mary, Nellie, and Meyer. A the case.7 fourth, Esta, came along in 1907. The Young Abe came of age during the era of youngest—listed in the Shelby County Birth Jim Crow, and the experiences of African Records as “Abaram” but elsewhere always Americans in the city reflected both the as “Abe”—was born on June 19, 1910.5 vibrancy of black life and the violence of 316 JOURNAL OF SUPREME COURT HISTORY Operating out of a small storefront on South Main Street in downtown Memphis (pictured circa 1910), William Fortas, father of the future Justice, tried his hand at a variety of businesses—operating a jewelry store, pawn shop, and clothing store. A Russian immigrant who was interested in music and literature, he was unable to thrive in business. white oppression. At the time, blacks ac- Americans lived in the alley behind the Fortas counted for approximately forty-eight percent family, and Fortas later recalled that he of the county’s total population. Both the “played with Negro kids” until he went to Linden and Pontotoc houses lay just a few school, which was of course segregated. blocks south of Beale Street, so Abe grew up in Despite recollections of these innocent en- the shadow of “the Main Street of Negro counters, seven-year-old Abe surely remem- America.” Although not far from Memphis’s bered the horrific lynching that occurred central business district, Beale Street seemed a in Memphis in May 1917. After the murder world apart. Robert Church Sr., the city’s of a young white girl, 5,000 Memphians leading black businessman, had acquired came out to witness the burning of Ell many of the commercial properties on the Persons, a black man who had supposedly street during the 1880s and 1890s, and on confessed to the crime. After the lynching, weekends Beale beckoned black farmers and three white men in a car tossed Persons’s sharecroppers from the surrounding region, charred, severed foot and head out of the car who, along with the local working-class black window, into a group of African American population, created a flourishing economic men standing on Beale Street, just a few blocks and cultural life that included the blues.8 Black away from the Fortas home. Four years later, life on Beale obscured the tense race relations in 1921, a chapter of the Ku Klux Klan was that often prevailed in the city. African founded in the city.9  MEMPHIS AND ABE FORTAS 317 While the Klan sought to intimidate the second highest average in his class. “With Jewish population, Abe immersed himself in Abe it was study, study, study. That is the music and academics. William Fortas, an thing I remember most,” his older brother amateur musician, encouraged his son to take Meyer later recalled. Abe’s musical talents up the violin, and Abe relished learning to helped support him—and his parents— play. With a slender build and long fingers, he throughout high school and beyond. “Abe’s seemed suited to the instrument. Abe first fine education cost me practically nothing,” took lessons at home from a family friend and his mother observed later, just after he had then through a Catholic Church in his completed law school. “His music and neighborhood. Eventually, he learned enough scholarships have put him where he is to teach others how to play. By teaching, in today.”12 turn, he earned enough to take lessons Focusing on the violin and his studies through the Memphis Conservatory of Music. must have provided Abe with the inner There he studied with Joseph Cortese, a strength necessary to thrive as part of an Chicago-trained musician and the leader of a immigrant Jewish family in a sea of native- popular Memphis musical trio at the time.10 born Protestants. During the 1920s, a militant By age thirteen, Fortas was good enough to form of Christian fundamentalism was taking begin earning money playing. His first job shape throughout the South, and one news- had been working in a women’s shoe store, a paper at the time described Memphis as a job that Abe gladly left behind. In high “Baptist Citadel.” In 1921, the city appointed school, he became director of a band, “The a three-member Board of Censors to deter- Blue Melody Boys,” which played two or mine the suitability and morality of theatrical three nights a week at a local park, allowing performances and motion pictures. Mean- him to earn the impressive sum of eight while, the famous evangelist Billy Sunday dollars an evening. The band also performed twice visited the Bluff City during the era— at parties, as well as high school and college first in 1924 and then again in 1925, when dances throughout the city. The fact that Sunday spent eighteen straight days in the he could make money while making music city preaching to huge crowds that totaled gave him enormous satisfaction, and by the over 200,000. Like other Christian funda- time he graduated in 1926, Fortas had earned mentalists of the age, Sunday warned of the the nickname “Fiddlin’ Abe.” In his high dangers of modernism, theological liberal- school yearbook, Fortas attested to his love of ism, and the teaching of evolution, while music in the published quotation that praising biblical literalism. The second of appeared alongside his picture: “Music is Sunday’s Memphis crusades occurred against one of the most magnificent and delightful the backdrop of the Tennessee state legis- presents God has given us.”11 lature’s passage of the Butler Act. The law If Abe inherited his musical interests banned the teaching of evolution in public from his father, his academic talents set him schools and, later that year, led to the Scopes apart from the rest of his family, none of Trial in the town of Dayton, located about whom ever went to college. According to his three hundred miles to the east of Memphis. mother, “Making good marks in his school In the summer of 1925, the jury’s quick work always seemed to come natural to Abe.” conviction of biology teacher John T. Scopes He went through the eight-year course of for violating the statute—after two of the study at Memphis’s Leath Grammar School most famous attorneys in the country debated in six years, and he finished the four-year creation and evolution before the court— course at South Side High School in three captured the attention of the city. After it was years, graduating at the age of fifteen with the over, Memphis newspapers roundly praised 318 JOURNAL OF SUPREME COURT HISTORY Scopes’s conviction, and Edward Hull college that had just opened its doors in Crump, the city’s political boss, advocated Memphis.15 banning the defense attorney, Clarence After graduating from Southside High Darrow, from the state of Tennessee.13 School in 1926, Abe beat out twelve other If Protestant fundamentalism dominated applicants to become the first recipient of the the culture, the local Jewish community Israel H. Peres Scholarship at Southwestern. nourished and recognized Abe’s talents and contributed to his educational advancement. Jews had first arrived in Memphis during the Attending Southwestern late 1830s. In 1853, the first congregation formed in the city, and some years later Jacob Originally founded in 1848 in Clarks- Peres arrived from Philadelphia to serve as ville, Tennessee as Montgomery Masonic the city’s first rabbi. During the first decade or College, Southwestern became affiliated with so of the twentieth century, an influx of the Presbyterian Synod of Nashville in 1855. Eastern European immigrants like the For- Sluggish enrollments and struggling finances tases doubled the Jewish population of the prompted the college to move from Clarks- city, so that by 1912 six thousand Jews called ville to Memphis in 1925, and by the Memphis home.14 Jews in Memphis were time Fortas stepped foot on campus in fall divided between Reform and Orthodox in 1926, the institution was known simply as both their religious practices and social lives, “Southwestern.” Its president, Charles E. and the Fortas family belonged to the Diehl, who had initiated the move to the Orthodox congregation, Baron Hirsch. But state’s largest city at the request of the it was the secularly oriented social organiza- college’s board, had high hopes for the place. tion that emerged out of the Orthodox A graduate of Princeton Theological Semi- community—the Arbeiter Ring—that played nary, Diehl had hired an impressive faculty— the most important role in the lives of Abe’s composed of a number of Ivy League alumni family members, who were not very reli- and a handful of Rhodes Scholars—and gious. A philanthropic and cultural organiza- successful fundraising had allowed the col- tion, the Arbeiter Ring sponsored concerts lege to begin building a grand campus in the and taught Yiddish. It was at such events that gothic style on 124 acres opposite a large city young Abe came into contact with Hardwig park on the edge of the city.16 Peres, the son of Jacob Peres and one of Abe’s President Diehl believed deeply in eventual Memphis mentors. On one occasion traditional liberal education, as well as at the Arbeiter Ring Hall, when Abe was very thoughtful moral instruction. The curriculum young, he recalled his mother saying to him, for the co-educational study body at South- “See, that’s Mr. Peres.” Hardwig Peres was a western included two years of Bible, two pillar of the Jewish community and a civic years of English, and two years of Mathemat- leader in Memphis. A successful merchandise ics, Latin, or Greek, in addition to other broker, Peres served as a member of the board requirements.17 Chapel services were com- of directors of the Memphis Chamber of pulsory. Although an ordained Presbyterian Commerce and as president of the local minister who had served as pastor of a church school board. His younger brother Israel in Clarksville before assuming the presidency Peres attained prominence as a local chancery of Southwestern, Diehl was no fundamental- court judge. After Israel Peres died of a heart ist. In fact, just after Fortas’s time at the attack in 1925, his brother gave $25,000 to College, Diehl found himself accused of endow a scholarship for local students to heresy by a group of local Presbyterian attend Southwestern, a small liberal arts ministers who believed he was not “sound  MEMPHIS AND ABE FORTAS 319 very brilliant student,” Dr. A.T. Johnson, a professor of English, later noted. A history professor, John Henry Davis, echoed these sentiments. “He had one of the most incisive minds I have ever seen in an undergraduate in all my teaching experience,” Davis noted. “He saw through things into their deeper aspects more than most men do.” Fortas earned high grades—A’s with a handful of B’s—and he later expressed a deep appreci- Charles E. Diehl, president of Southwestern from ation to the Southwestern faculty who, in 1917-1949, had initiated the move from Clarkesville Fortas’s words, “opened for me new vistas to Memphis the year before Abe Fortas enrolled. into man’s past and future.”19 While achieving academic success, For- in the faith”—because of his liberal and tas navigated student life with aplomb. modernist sensibilities, including his non- Arriving at college at the age of sixteen literal reading of the Genesis account of while most of his peers were two years older, creation. Diehl was eventually acquitted of all the Jewish teenager joined a Protestant charges in a hearing before the Southwestern student body of some 400 students, composed Board of Directors and later in a heresy trial in of young men and women drawn mostly from his home Presbytery. His reputation suffered the city and the surrounding region. The among the more conservative elements freshmen and sophomore classes—those within the denomination, but Diehl thought enrolled since the college had moved to it a small price to pay for the type of Memphis—included a total of ten Jews, of institution he was attempting to build. Diehl whom eight hailed from the Bluff City.20 A and the faculty he hired exemplified a form of number of Southwestern’s students were early twentieth-century liberal Protestantism well-to-do. Fortas stayed away from the that exposed Fortas to a combination of fraternity scene and the elite campus social serious moral reflection and intellectual open- clubs—Jews probably would not have been mindedness.18 allowed to join—and instead focused on For the smart and talented Fortas, who reading, writing, thinking, and arguing. In had mostly grown up on the margins and high school, Abe had made a name for lacked academic role models, attending himself as a debater, and as a freshman at Southwestern was a transformative experi- Southwestern, he participated in a mock trial ence. Although he apparently lived at home, about the teaching of evolution, a perfor- Abe jumped into college life with both feet. mance that marked the beginning of his Fortas used the money he earned from his college debate career. During three years on violin playing to buy a car, and he seemed the college’s newly formed debate team, he constantly on the move—from sleeping at reportedly won seventeen contests and only home to studying and attending class on lost three, while debating such important campus to playing gigs at local concerts and topics as government regulation of hydro- dances. He excelled in his coursework while electric power, international disarmament, also devoting himself to a variety of extra- and the future of the American jury system. curricular activities. At first he considered The Southwestern team travelled to schools studying music, but he eventually decided to throughout the middle of the country, and focus his attention on English and political these debate trips—to places such as St. Louis science. His professors loved him. “He was a —were no doubt Fortas’s first opportunities 320 JOURNAL OF SUPREME COURT HISTORY A description of Southwestern, “The College of the Mississippi Valley,” in 1926, at the time of Fortas’s arrival on campus (it was renamed Rhodes College in 1984). to travel far outside of his hometown. He “Nitists.” “Each member,” according to the eventually served as president of the debate yearbook, “contributes a paper during the club, known as the “Quibbler’s Forum.”21 course of the school year and reads it in Aside from debate, Fortas took an active meeting, whereupon it is discussed by part in other student activities and organiza- others.”22 According to a friend’s recollec- tions. He oversaw the poetry section of the tion, Abe presented on the topic, “Is Life college’s literary magazine. He was inducted Worth Living?” and concluded in the nega- into both the national honorary fraternity for tive. For one who questioned the value of life, leadership, Omicron Delta Kappa, and the Abe certainly lived it to the fullest, never literary honor society, Sigma Upsilon, the slowing down while in college. Noting his latter of which he also served as president. In numerous interests and accomplishments in addition, he served as secretary-treasurer of referring to these years in his life, one Alpha Theta Phi, a scholastic honor society newspaper reporter described him as “a and forerunner to the college’s Phi Beta natural born hustler.”23 Kappa chapter. Most interestingly, Fortas Music also continued to be important to joined about a dozen-and-a-half students and Fortas’s social life during his college years. a handful of faculty members as part of a He played in the Southwestern orchestra and campus philosophical club known as the during his sophomore year served as its  MEMPHIS AND ABE FORTAS 321 director.24 But apart from any formal respon- minister to speak on the Southwestern sibilities, he continued to play the violin for campus. Fortas later recalled that this was all sorts of occasions, as is evident from “the first Negro who had ever come there” articles in the student newspaper. In Spring and the first time he “shook hands with a 1929, he conducted two orchestras that Negro.” Reflecting on how his liberal racial provided the musical entertainment for the attitudes took shape, Fortas later mused, “It Men’s Pan-Hellenic Council’s “All-Greek” must have been sometime when I was in annual dance. That fall, he joined with a college, and it must have been the result of group of students who went on a local radio thinking or reading or something” that caused station to promote an upcoming football his own views to develop on the subject.26 game between Southwestern and the Univer- In the spring of 1930, Fortas graduated sity of Arkansas, playing a piece on his violin with honors from Southwestern and, with the as part of a program that included vocal solos help of President Diehl and Hardwig Peres, and school cheers. Such was Fortas’s reputa- secured a scholarship to law school. Having tion that one article, in describing the music to decided to pursue the law, Fortas considered be played at a fraternity “tea-dance,” noted Harvard and Yale, and both men did all they that “collegians will tap the floor to measured could to assist him. Diehl had gotten to know beat and the jazz tunes of Abe Fortas and his Fortas well during his time at the college. His orchestra.” It seemed that any cluster of academic accomplishments and musical tal- musicians that collaborated with Fortas took ents, in addition to the fact that he was Jewish his name.25 Playing the violin served to and younger than his peers, made Fortas stand reinforce the work ethic, precision, and out among the student body. Diehl liked him discipline that Fortas exhibited in other and wrote strong recommendations on his aspects of his life. In other words, violin behalf. Describing Fortas as “one of our first not only rounded out his academic interests, it honor men,” Diehl made clear that Fortas did also shaped his personality and his relation- not have the means to attend law school. “His ships. While classmates enjoyed people are poor,” Diehl wrote to Harvard Law Fortas’s musical talents, they also respected School, “and he has secured his education by his maturity, humility, and confidence. means of his own efforts, aided somewhat by In college, finally, Fortas developed an friends who know and believe in him.” Diehl activist streak that set him apart from many of went on: “The boy really needs all the help he his classmates. His studies in literature and can get, and you would not regret bestowing a politics, Bible and philosophy no doubt scholarship upon him. He is a young man who prompted the young scholar to consider his will be heard from, and I commend him to you own place in society as a Jew, as well as that for your very careful consideration.”27 Peres of others—African Americans and the poor favored Yale, and he again played a crucial —who existed on the margins. He certainly role in charting young Abe’s course. Israel saw himself as an outsider. During his junior Peres, the former Memphis judge, had year, Fortas served as the president of the attended Yale as both an undergraduate and independent “non-fraternity club” and urged law student, and Hardwig Peres wrote to Yale his fellow students to vote for socialist explaining that Fortas had been the first candidate Norman Thomas for President of recipient of the Peres Scholarship at South- the United States. At the end of that year, western. Playing up the rivalry between the he tried his own hand at politics when he two law schools, Peres also noted that the unsuccessfully ran for student body vice president of Southwestern was “correspond- president. And as president of the Nitist club, ing with Harvard to get one of their scholar- he invited the leading local African American ships.” Peres continued, “[B]ut of course I 322 JOURNAL OF SUPREME COURT HISTORY The March 21, 1930 edition of The Sou’wester, the school newspaper at Southwestern, reported that the college’s debate team was off on a six-day trip through Illinois and Missouri, where they debated American disarmament. Young Fortas, an outstanding debater, is pictured in the center. would prefer Yale.” At the same time, Peres strict grading. More important was the fact wrote to his friend Diehl, asking him to write that Fortas earned scholarships to both a recommendation to Yale, a request with schools—quite an achievement during the which Diehl happily complied.28 Depression, a time of intense competitions for Because of Peres, young Abe preferred such awards. The Yale scholarship paid a bit Yale. After completing the scholarship more, which only confirmed Fortas’s prefer- application that Peres had arranged to have ence for following Peres’s path. At that point sent to Fortas, the soon-to-be Southwestern in his life, Fortas had spent little time outside graduate expressed his gratitude to Peres. of the South. Although he had travelled with “Nothing could be closer to my desire than to the debate team and had spent part of the have the opportunity of going to Yale; not summer in 1929 taking two courses at the merely because of its excellence, but also University of Wisconsin, the young south- because there I may have the opportunity— erner had never been to the East Coast.30 not of rivaling him whose memorial scholar- ship I now hold, but of following in his footsteps,” Fortas wrote.29 Fortas earned Maintaining Hometown Ties admission to both schools, which was apparently no great feat at the time. During Yale Law School marked the start of the 1930s, both Harvard and Yale admitted Fortas’s professional career, but Memphis large entering classes and then eliminated continued to hold an important place in his two-thirds of their admitted students through life. His mother, siblings, and extended  MEMPHIS AND ABE FORTAS 323 family all remained in the Bluff City, and he Administration (AAA) in New Deal Wash- would return from time to time over the next ington. For the next five years, Fortas several years for visits. More important, commuted back-and-forth between New having successfully launched Fortas to the Haven and the nation’s capital. From Mem- top echelon of American legal education, his phis, Diehl watched Fortas’s rapid rise. The Memphis mentors continued to offer support Southwestern president undoubtedly enjoyed and counsel from afar. Diehl and his young his conversations and correspondence with protege formed a solid bond soon after Fortas, for whom he had great affection. Diehl Fortas’s graduation from Southwestern. Mid- also saw the value in promoting the success of way through Fortas’s first year at law school, the young alumnus. In the aftermath of Diehl’s in December 1930, William Fortas suc- trial for heresy, during which Southwestern’s cumbed to cancer. Abe stayed in New Haven, reputation had suffered, in fall 1933 Diehl choosing not to make the long, expensive confided to Fortas some of the troubles the train trip back home for his father’s funeral.31 college was experiencing. “As you know, The Diehls did all they could to offer support. there are some people down this way who are Mrs. Diehl called on the widow Fortas at the not friendly to us,” Diehl wrote. “I hear that family home, and President Diehl wrote to some of them are circulating reports around Abe to offer condolences. In his letter, Diehl Memphis to the effect that Southwestern is not recalled first learning of William Fortas’s much of a college, that its credits are not illness. “I well remember the day when you accepted by other institutions, and that the and I were going to have a talk, and your State Teachers College [now the University of father was taken sick,” Diehl wrote. “Instead Memphis] far outranks Southwestern.” Dis- of having our meeting you had to go to the missing such talk as “rubbish,” Diehl asked Baptist Hospital, and we never did have that Fortas to attest in writing to the value of his talk that I have wanted to have with you. education at the school—to reiterate the words Sometime when you are home on vacation, that he had expressed in person to Diehl the we will have it.” Diehl went on, in a pastoral previous summer.33 way, to discuss how his religious faith served In a spring, 1934 reply, Fortas offered an as a “great consolation” at the time of his own endorsement of his undergraduate experi- father’s passing. Touched both by Mrs. ence. Not only did he reveal that he had Diehl’s visit to his mother and President recommended Southwestern to a Yale law Diehl’s words of comfort, Abe sent an professor and his wife, who were discussing extended handwritten letter of thanks. Ac- where to send their son to college, Fortas also knowledging the “kindness, genuineness, and described his educational background as on thoughtfulness” of Diehl’s letter, Fortas par with those of “graduates of the large expressed his deep gratitude. “I treasure in eastern universities.” More to the point, my heart what you have done,” he wrote. Abe Fortas spoke disapprovingly of the “stan- went on to discuss his studies at Yale—which dardization of personality” at the more he described as “grueling”—and promised to established East Coast institutions and see Diehl that summer when he returned praised the atmosphere at Southwestern, home.32 “where playing chess with the professors is In subsequent years, Diehl and Fortas a favorite indoor sport, and where the developed a warm relationship based on influence of people in daily contact with mutual admiration and respect. Fortas gradu- the realities of city life is very noticeable.” ated from Yale in 1933, and he immediately The following year Diehl saw fit to place landed both a teaching post with Yale and a Fortas on a list of notable alumni, used for position in the Agricultural Adjustment purposes of promotion and development, 324 JOURNAL OF SUPREME COURT HISTORY which included two U.S. Senators, a former Meanwhile, Fortas maintained strong U.S. Solicitor General, and former U.S. connections to Hardwig Peres and the Attorney General. Only a handful of the Memphis Jewish community. Although he alumni on the list had earned their degrees married a Protestant from the Northeast, during the new century. By 1934, only four Carolyn Eugenia Agger, in 1935, Fortas years after his graduation, Diehl obviously remembered his roots. When a prominent took great pride in Fortas’s achievements. For Memphis Jew, Sam Shankman, published a many years afterward, Diehl reportedly kept a history of the Peres family in 1938, he asked copy of Fortas’s senior thesis on his desk as Fortas to write a brief recollection of Hardwig an example of what Southwestern’s best Peres in the form of a letter to Peres, which students could accomplish.34 the author included as a foreword to the book. Memphis newspapers also took an “For many years, I thought of you with awe,” interest in Fortas’s career. During the Fortas wrote. “ . . . Not until I entered South- 1930s, the Memphis Commercial Appeal, western did I really meet you, and not until the morning paper, and the Memphis Press some years thereafter did I have the assurance Scimitar, the afternoon paper, provided and maturity to talk with you as boy to man.” extensive coverage of Fortas’s professional Fortas went on: “Awe yielded to admiration; advancement. The Commercial Appeal and admiration to respect and affection. I hold noted in March 1933, that he had become no man in greater esteem than you.”36 editor of the Yale Law Journal and written Like Diehl, Peres valued his friendship an article on wage assignments in Chicago with Fortas, and he made continued efforts to and later that year covered his hiring by the assist the young man. When Fortas was Agricultural Adjustment Administration serving as assistant director of the Public under General Counsel Jerome Frank. Utilities Division at the Securities and When he came home to visit family in Exchange Commission (SEC), Peres appar- 1937, the Press Scimitar made his return to ently lobbied on Fortas’s behalf for him to Memphis a headline story, and when in secure one of the leadership positions at the 1939 he left the Agricultural Adjustment SEC. In an April 1939 letter, Fortas thanked Administration to become counsel for the his patron in advance for offering to Public Works Administration (part of the communicate with U.S. Senator Kenneth Interior Department), the paper even edito- McKellar and Congressman Walter Chandler rialized about Fortas’s success, seeing it as on his behalf. Although grateful for the help, a chance to tout the education that the city Fortas, by this time an experienced New had provided to the young man. “Memphis Dealer, frankly acknowledged that anti- is honored every time one of its citizens Semitism in Washington limited his oppor- is honored . . . ” the Press Scimitar wrote. tunities. He noted in the same letter to Peres “Memphis has great educational opportu- that it was impossible for him to have been nities and they are available to those who appointed to serve with his friend Jerome have the ambition and determination to Frank at the SEC, “because that would result take full advantage of them.”35 Although in two Jews being on the SEC . . . a thing these articles uniformly took note of Fortas which in the present climate of opinion is having graduated from Southside High and neither possible nor desirable.”37 Neverthe- Southwestern, none of the newspaper less, Fortas continued to rise, and in the coverage of his early career mentioned summer of 1942, after serving briefly as that the successful young Memphian was general counsel of the Public Works Admin- Jewish. Civic pride seemed to matter more istration, became Undersecretary of Interior. than his religious preference. Harold L. Ickes, who went on to become the  MEMPHIS AND ABE FORTAS 325 longest serving Secretary of the Interior The controversy over Fortas’s draft in U.S. history, made him his right-hand man. status eventually blew over, but Peres’s In the midst of World War II, Fortas influence lingered. As Fortas wrote to Peres continued to confide in Peres. The first political about these events, Peres responded by controversy of Fortas’s career came in the sending Fortas clippings of the Memphis summer of 1943 when New Deal critics newspaper coverage. The hometown papers objected to Fortas’s draft reclassification at demonstrated remarkable loyalty to Fortas the behest of President Franklin D. Roosevelt throughout the controversy—they still never and Secretary Ickes. At the time, Fortas actually referred to his being Jewish—and one held a number of positions in government, and newspaper item announced that Fortas would his expertise on matters of policy—through his be returning to Memphis, during which an membership on various government commit- open house would be held in his honor at the tees and commissions—ranged from petroleum home of his brother Meyer. “All friends of the to Puerto Rico. Fortas knew how to get things family are invited to call,” the piece con- done in Washington, and Ickes thought him an cluded. Peres, who was surely among the indispensable man. Still, when some congres- callers, remained active in Memphis on sional Republicans mounted character attacks, Fortas’s behalf. After Fortas’s discharge some of which included anti-Semitic remarks, from the service, Roosevelt re-nominated Fortas chose to resign his position and enlist. him for his old position at the Interior The criticism stung. Fortas wrote to Peres Department, and Peres wrote to Senator throughout the wartime controversy. “I could McKellar and enlisted others—including not escape the feeling that another attack on a Diehl—to lobby them as well.39 Meanwhile, Jew in connection with the deferment issue Fortas told Peres about his work on “Persian would do tremendous damage to all Jews in this Gulf oil problems.” “In connection with this country,” he wrote in September 1943. “This work,” Fortas explained, “I have been getting last consideration weighed most heavily with some information about Palestine. I hope that me. I felt that if there were in the future a strong when I am in Memphis in March you will take wave of anti-Semitism in this country, I should time to talk with me about that problem.” never be able to evade the feeling that I had Peres, a lifelong Zionist, continued to somewhat contributed to it.” Fortas confided exchange letters with Fortas over the next to his old friend, “I hope that I have done the few years on the matter of a Jewish homeland, honorable and decent thing.” He concluded and Fortas too came to embrace the Zionist the letter with a statement about the sacrifices position.40 of public service, perhaps foreshadowing the Meanwhile, Diehl and Southwestern financial scandals that would plague him at the continued to tug at Fortas. After delivering end of his career. “The plain fact is that people a speech at the City College of the City of generally do not understand the disadvantages New York in the fall of 1945, Fortas sent a and hazards of honest public service in a copy to Diehl, who remained at the helm of conspicuous post,” he wrote. “They do not Southwestern. Rather than a simple acknowl- realize that it involves absolute rejection of edgement of the speech and accompanying financial or economic benefit.” After resigning note, Diehl instead offered a lengthy critique his position with the Interior Department, of the ideas of the alumnus. “With most of Fortas enlisted in the Navy, but within a month your address I am in hearty accord,” the found himself discharged from the service for college president wrote. But he went on to medical reasons—for “ocular tuberculosis,” gently admonish Fortas that he had left God an eye condition that had afflicted him a few out of his discussion of morality. “As you years before.38 know quite well, most people are not guided 326 JOURNAL OF SUPREME COURT HISTORY by reason, but by emotion, and I do not commencement celebration. It was a warm believe that we can have a just and enduring Memphis homecoming for Fortas, who, after peace by relying upon reason, enlightened a decade-and-a-half of important government self interest, or mere material possessions,” service, had recently left his position at the Diehl wrote. “Somehow I believe that we Interior Department to start the D.C. law firm have got to have a higher authority than man’s Arnold & Fortas with his old Yale professor reason, a Divine authority, which we who are and New Deal associate Thurman Arnold. made in His image must obey, One to whom The largest Alumni Day crowd in the we must give account.” The genteel Presby- college’s ninety-eight-year history attended terian pastor reminded the nonobservant Jew the event, and the audience included Fortas’s of a conversation that they had had many family members, as well as both Diehl and years before in Diehl’s office about religious Peres. A few years before, the Press Scimitar faith, and Diehl concluded the letter by noting had referred to Fortas as “one of Washing- that he had included a copy of a sermon ton’s brilliant young men,” and on this written by a Presbyterian pastor friend and occasion the paper offered an adoring account fellow Southwestern alumnus.41 of the former Memphian, calling him “prob- The following June, Fortas returned to ably Southwestern’s outstanding graduate” Southwestern, at the invitation of Diehl, to and proudly quoting Fortas in saying that he deliver the “Alumni Day Address” during the considered Memphis “[his] first home.”42 In his 1946 speech at the college, “An Approach to Progressive Policy,” Fortas offered a vision of an activist government at home and abroad, one that would combat the threats of famine and fascism overseas while tackling inequality and injustice in the United States. Perhaps taking some of the advice that Diehl had offered six months earlier, Fortas offered at least one direct reference to the connection between religion and morality, when he alluded to the dangers posed by atomic weapons: “Man’s technol- ogy has so far out-stripped man’s sociology that we are like a child who knows how to kill but is completely ignorant of the Sixth Commandment.” Fortas concluded the speech with a call to action and an appeal to the role of Southwestern and other higher educational institutions in bringing about the change that he believed was required. Most strikingly, Fortas made a handful of references to the issue of civil rights. Eight Beginning in 1926, Hardwig Peres took an interest in years before Brown v. Board of Education, young Abe Fortas. Pictured here during the 1930s, Fortas urged his white southern audience to re- Peres not only endowed the scholarship that allowed think their commitment to racial segregation. Fortas to attend Southwestern, he also received an “It seems to me that our domestic problem and honorary degree from the college in 1935. Peres corresponded with Fortas for more than two decades, specifically the problem of the South must also until Peres’s death in 1948. be dealt with positively,” he stated. “ . . . We  MEMPHIS AND ABE FORTAS 327 must not fall into the trap of assuming that the time Peres endowed the scholarship for what is must be divinely right and must at all young Abe, and Peres proved to be one of the costs be protected from change.” Fortas college’s most important Memphis benefac- continued: “We must realize that in this tors. Diehl responded to Peres’s generosity by country of ours the democratic and constitu- bestowing an honorary degree upon Peres in tional promises of opportunity for liberty and 1935, and the following year Peres donated an the pursuit of happiness are not the exclusive oil portrait of his brother Israel to the college. possessions of a few. They are the rights of When Diehl warmly received it, Peres wrote all.”43 It would be another eighteen years to Diehl, lauding his “broad spirit as a before the first African-American students wonderful asset to this community.”47 would enroll at Southwestern, and Memphis Still, if Fortas lost some of his personal remained a deeply segregated city, but in his ties to his hometown, the relationships with 1946 speech, Fortas offered a bold vision for family members, as well as with Southwest- the future of the college and the country. The ern and the Peres family, endured. His minutes of the college’s meeting of the Board siblings and their children remained in the of Directors later referred to the speech as “the Bluff City, and his nephew Alan, the son of high point of the year,” and the college Abe’s brother Meyer, went on to become a published and widely distributed Fortas’s member of Elvis Presley’s famous “Memphis remarks, apparently without controversy. Mafia.”48 Meanwhile, Southwestern main- The Press Scimitar also carried a favorable tained a strong relationship with its notable account, although it focused on Fortas’s graduate. Fortas continued to give regularly foreign policy recommendations rather than to his alma mater, and he occasionally his comments about segregation.44 represented Southwestern at ceremonial oc- During the late 1940s and 1950s, Fortas casions in Washington, such as the inaugura- lost some of his most important personal tion of Georgetown’s president in 1949. “I am connections to Memphis. Just a few months honored to represent Southwestern anywhere after the speech at Southwestern, his mother and at any time,” he wrote at the time. Rachel died of a heart attack at home after a President Rhodes corresponded with Fortas long illness. Two years later, in Novem- for several years and called him on the ber 1948, after a lifetime of service to the telephone when he had occasion to be in Memphis Jewish community, the venerable Washington. In 1955, Rhodes invited Fortas Hardwig Peres passed away at the age of back to campus to speak at the alumni eighty-nine. Appropriately, Fortas made a luncheon at his twenty-fifth reunion, at which generous gift to the Israel H. Peres Memorial time Fortas made the rounds in town, visiting Fund in memory of Hardwig Peres, thus with family members and talking with old helping to allow future generations of friends. Hardwig Peres’s nephew, Hardwig Memphians the opportunity to study at “Harvey” Peres Posert, meanwhile, carried Southwestern.45 In 1949, Charles E. Diehl on the tradition of community service in retired as president of the college, and Peyton Memphis that had meant so much to his uncle, N. Rhodes (for whom Southwestern was including championing the Israel Peres renamed in 1984) assumed the presidency of Scholarship at Southwestern. When Posert Fortas’s alma mater.46 Meanwhile, Diehl and died in March 1958, Fortas made a gift to Peres’s common interest in Fortas—in whom Southwestern in his memory. “As you know,” both had taken such pride—seemed to have Fortas attested in a note to President Rhodes, built an unbreakable bond between the “my life was deeply affected by my associa- Presbyterian college president and the Jewish tion with the Peres family.”49 And Memphis businessman. They began corresponding at newspapers continued to cover Fortas’s 328 JOURNAL OF SUPREME COURT HISTORY career with gusto. Of course, his appointment was in Memphis that Fortas learned his to the U.S. Supreme Court by President earliest lessons about life. It is where he Johnson in 1965 prompted a fresh round of formed family relationships and first friend- Memphis media profiles of the hometown ships as a youth. It was where he acquired the boy who had fiddled his way through skill and discipline to play the violin and Southwestern, made a name for himself where his mind expanded during his college among Washington’s rich and powerful, years, beyond the immediate confines of his and landed a seat on the nation’s highest humble environment and into other realms of court.50 To all Memphians, it seemed, Fortas human culture, achievement, and possibility. was a great source of civic pride. But apart from these fundamental elements of personality, his Memphis upbringing also helped to shape some of Fortas’s specific The Making of a Justice attitudes about law and justice. This influence was evident in at least three areas. What does it mean to say that a person is First, the experience of growing up poor a product of a place—to say that Memphis in Memphis—living on the edge of society helped to make Justice Fortas? Certainly, it during his childhood years as his father Abe Fortas, during the late 1930s, as a Yale Law School graduate and young New Dealer. His roots—Jewish, poor, and Southern—would continually inform his belief in justice for the poor, freedom for religious minorities, and civil rights for African Americans.  MEMPHIS AND ABE FORTAS 329 attempted to support his large family—surely overruled Betts and held that the right to affected Fortas’s ideas about protecting the counsel was included among the rights legal rights of the poor and marginalized. A incorporated by the Fourteenth Amendment pair of scholars who have analyzed the socio- to apply to the states. It might not only have economic backgrounds of the Justices of the been Fortas’ss poverty that prompted his Supreme Court describes Fortas, along with devotion to the right to counsel for poor Thurgood Marshall, as one of the two most defendants. Perhaps Fortas knew that in 1917, “underprivileged” Justices to ever occupy a during his childhood, Memphis had estab- seat on the Supreme Court.51 When he first lished the first public defender east of the joined forces with Thurman Arnold in 1946, Mississippi River, only the third public Fortas began a successful and lucrative career defender office in the nation at the time. as a D.C. corporate lawyer, but because Fortas Regardless of whether he was aware of this did not have the advantages enjoyed by others bit of legal history about his hometown, growing up, he sympathized with the plight of Fortas believed deeply in the cause. As he the poor and frequently referred to promoting noted in another speech at Southwestern, in the values “of compassion, of understanding, 1966, Fortas felt that, with the due process and of justice” in law and society.52 For a revolution in cases such as Gideon, the corporate lawyer, Fortas retained, as Anthony Supreme Court was helping to bring about Lewis put it, an unusual interest in the “the extension of the benefits of law and of “philosophy of criminal law,” as he frequently our material achievements to all people and wrote and spoke on the subject. not just a fortunate few.” In an interview that Specifically, Fortas took a deep interest in same year, Fortas lamented the sad state of indigent defendants securing the right to legal services for the poor. “Lawyers have counsel. When the Justices asked him in been the tool of the enemy—out of reach of 1962 to take the case of Clarence Earl Gideon, the poor . . . Our traditional system of volun- a drifter convicted of petty theft who had tary legal aid and legal aid societies is totally submitted an in forma pauperis petition to the inadequate . . . Only about 10 per cent of those Supreme Court from a Florida jail cell, Fortas persons needing legal aid are actually embraced Gideon’s cause. Knowing that serviced,” he argued.54 Even if the Court arguing the case gave him a chance to was eager to hear Gideon and overturn Betts, convince the Court to overturn its 1942 Fortas brought a personal passion to the decision in Betts v. Brady, which had denied subject that certainly helped Gideon’s cause. that the right to counsel applied in state cases Second, the experience of growing up except in special circumstances, Fortas rel- Jewish in Memphis during the Scopes Trial ished the opportunity. According to Lewis, influenced his view of the appropriate place Fortas and his associates spent months of religious doctrine in public policy. At the building an argument that the Sixth Amend- time of Scopes’s conviction under the ment required the protection of the right to Tennessee anti-evolution law, a handful of counsel for defendants accused of serious other states in the South had passed similar offenses in state courts. In Lewis’s words, statutes. One of those laws, from Arkansas, “[Fortas’s] oral argument was as thorough, as came to the Supreme Court in 1968 in the case dramatic, as suave and—most important to the of Epperson v. Arkansas. Three years before, Justices—as well-prepared as anything that Fortas had reached the pinnacle of his career could have been done for the best-paying when President Johnson appointed him to the corporate client.”53 Supreme Court. Given his Memphis public Fortas won Gideon’s case, as in 1963 a school education during the 1920s, Justice unanimous Court in Gideon v. Wainwright Fortas found it difficult to distance himself 330 JOURNAL OF SUPREME COURT HISTORY from the matter of state anti-evolution failed to interpret the statute with precision, legislation. While one of Fortas’s law clerks Fortas’s opinion nevertheless reflected the advised against Fortas even voting to grant dominant notion among the justices that certiorari in order to hear the case as the state minority rights, including the rights of of Arkansas was not enforcing the statute, religious minorities, stood at the center of Fortas wanted the Court to get involved. In the nation’s evolving understanding of lib- response to the clerk’s memo, Fortas wrote, erty.56 Growing up Jewish in Memphis during “I’d rather see us knock this out.”55 the 1920s—a fundamentalist place at a The Justices were united in wanting to fundamentalist time—undoubtedly shaped strike down the statute, but Fortas took the lead Fortas’s view of the case. in arguing that the Arkansas anti-evolution Third, Fortas’s experiences of seeing statute violated the Establishment Clause of segregation and racial oppression in Memphis the First Amendment. In the Justices’ confer- affected his outlook on matters of racial justice ence, others thought the law overly vague or in and civil rights. Having first considered the violation of the free speech of teachers. Fortas reality of Jim Crow during his college years, had a different perspective. When asked to Fortas took a progressively more liberal stance write the majority opinion, Fortas invoked the on the question of the civil rights of African test laid out by the Court in 1963 in Abington Americans, as was evident in his 1946 speech School District v. Schempp, a case banning at Southwestern. Two decades later, in 1966, state-sponsored religious practices in public when the college awarded him an honorary schools, in order to take aim at the statute for degree and Justice Fortas spoke at its opening its sectarian purpose. Relying on a clerk’s convocation, he again addressed his southern research on the matter of the statute’s intent, hearers in bold terms about his—and the Fortas framed the Arkansas case as akin to the nation’s—commitment to the rights of all Scopes Trial, as he started and ended the Americans. By that time, Congress had opinion in Epperson by discussing the enacted the Civil Rights Act and the Voting Tennessee case, even citing autobiographies Rights Act, and Southwestern at Memphis that had been written by the two famous (as it had become known) had admitted its attorneys in the trial, Darrow and William first black students. Fortas’s hometown was Jennings Bryan. “No suggestion has been changing. In his address, Fortas lauded “the made that Arkansas’ law may be justified by great social revolution” in American life, “a considerations of state policy other than the revolution directed at the emancipation and religious views of some of its citizens,” Fortas upgrading of the Negro and the poor.” With wrote in the opinion “It is clear that a unique southern perspective on the issues fundamentalist sectarian conviction was and confronting the nation, Justice Fortas both is the law’s reason for existence.” He praised and challenged his audience. He concluded by citing not the words of the acknowledged the “formidable task” of the Arkansas statute, but the Tennessee statute South in overturning segregation, in moving under which Scopes had been convicted. past “deep-seated customs and tradition.” At “Perhaps the sensational publicity attendant the same time, Fortas urged a wholesale upon the Scopes trial induced Arkansas to embrace of these revolutionary changes, in adopt less explicit language,” he wrote, “but order create a “new and more vital South— there is no doubt that the motivation for the law richer and greater because it more closely was the same: to suppress the teaching of a approximates man’s religious and moral theory which, it was thought, ‘denied’ the conceptions—because it is based on the divine creation of man.” Most of Fortas’s principle that all men are created equal colleagues signed onto the opinion. Even if it before the law.”57  MEMPHIS AND ABE FORTAS 331 During his brief tenure on the Court, Fortas for the position of Chief Justice in June 1968, demonstrated a rock-solid commitment to Senators questioned the appropriateness of his African Americans’ civil rights. He voted close relationship to the President, as well as his with the majority in cases upholding the Voting acceptance of a large honorarium raised by Rights Act, striking down the poll tax, and friends and clients for his teaching a course at advancing the desegregation of public schools. American University. Senate opposition He wrote the majority opinion in Brown v. prompted Johnson, who by that time Louisiana, the 1966 case in which he struck had announced that he was not running for down as a violation of the First Amendment a re-election, to withdraw the nomination. Nearly Louisiana breach of peace statute that had been a year later, Life magazine reported that Fortas used against African-American civil rights had received a sizable honorarium for serving protesters in a public library. But it was the as a consultant to a charitable foundation, a Fourteenth Amendment, with its ringing financial relationship that many viewed as phrases of “due process” and “equal protec- unethical. After spending many months mired tion,” that ushered in the civil rights revolution in controversy, on May 14, 1969, Fortas and that embodied Fortas’s career-long com- resigned his seat on the Court.59 mitment to racial justice. In a paper on the Whatever shortcomings or scandals Fourteenth Amendment delivered in 1968, in typically associated with him, Fortas was commemoration of the centennial of its an idealistic Justice who possessed a passage, Fortas expressed his deepest principles distinctive moral vision for society. “The on the subject. “The revitalization of the Constitution is more than a set of precepts Fourteenth Amendment that has occurred in which can be enforced in the courts. It is the past generation or so has . . . [brought about] more than a chart for litigation—it is a way the mighty accomplishments of our time,” he of life; a national philosophy; a social argued. “The great command of the Fourteenth theory; a political ethic; and a guide to Amendment—equality under the rule of law, national morality,” he argued in a 1967 protecting the fundamental rights of humanity speech.60 While we know much about the —is, after all, basic in our religious and ethical forces that shaped Fortas’s life and work— ideals.” In 1972, after his resignation from the especially the legal realism movement at Court and in the midst of President Richard Yale—Johnson always treated and trusted Nixon’s re-election campaign, Fortas offered a Fortas as a fellow southern liberal, as one more intimate view. Warning against the whose background was similar to his own. dangers of rolling back these revolutionary Describing him as “a man of humane and changes, Fortas harkened back to his childhood deeply compassionate feelings,” Johnson in Memphis. “As a Southerner—born and believed that, in nominating him for the brought up in the Mississippi Delta—I recall Chief Justice position, Fortas would carry the outrages of the Ku Klux Klan, directed out the revolution in rights that had been the against Jews, Catholics, and Negroes,” he hallmark of the Supreme Court under Chief wrote in an op-ed piece for The New York Justice Earl Warren.61 Fortas’s early life Times.58 It was a rare public expression of a experiences—growing up poor and Jewish private man’s personal commitments. in a racially divided city, as well as his Of course, Fortas’s constitutional values— formative relationships with mentors Diehl a belief in justice for the poor, freedom for and Peres—undoubtedly influenced his religious minorities, and civil rights for African liberal attitudes about law and justice. Americans—have been obscured by the ethical Even if he ended up a consummate scandals that ended his brief tenure on the Washington insider, Abe Fortas was made Court. After President Johnson nominated him in Memphis. 332 JOURNAL OF SUPREME COURT HISTORY The September 23, 1966 edition of The Sou’wester reported Associate Justice Fortas’s return to campus for opening convocation. President David Alexander awarded Fortas an honorary degree, and the Justice urged his audience to embrace the revolution in civil rights. Author’s Note: The author would like Registrar’s Office at Rhodes, and Marcia to thank Regan Adolph of Temple Israel Levy, a Fortas descendant and current Archives, Wayne Dowdy of the Memphis/ Memphis resident, for their assistance. Shelby County Room at the Memphis The author also acknowledges the helpful Public Library, Bill Short of the Rhodes comments of Laura Kalman, Michael College Archives, DeAnna Adams of the Nelson, and Stephen R. Haynes. Abe Fortas, speaking at Southwestern at Memphis for the last time, in 1981, just a year before his death.  MEMPHIS AND ABE FORTAS 333 ENDNOTES T624, 1,178 rolls). Records of the Bureau of the Census, Record Group 29. National Archives, Washington, D.C., 1 Address by Abe Fortas, Associate Justice, Supreme viewed at www.ancestry.com. Nowhere else in the Court of the United States, Southwestern at Memphis, records or sources for this paper was Abe Fortas ever Memphis, Tennessee, September 16, 1966, Rhodes referred to as “Abaram” or “Abraham.” It was always College Archives, Memphis, Tennessee. “Abe.” 2 6 Fortas’s early life in Memphis receives little attention in R.L. Polk & Co.’s Memphis City Directory, 1919 biographies. Bruce Allen Murphy, Fortas: The Rise and (Memphis, 1919); R.L. Polk & Co.’s Memphis City Ruin of a Supreme Court Justice (New York, 1988), Directory, 1921 (Memphis, 1921); R.L. Polk & Co.’s pp. 2-7, devotes about five pages to Fortas’s Memphis Memphis City Directory, 1922 (Memphis, 1922); R.L. years, while Laura Kalman’s excellent Abe Fortas: A Polk & Co.’s Memphis City Directory, 1924, (Memphis, Biography (New Haven, Conn., 1990) devotes about 1924); R.L. Polk & Co.’s Memphis City Directory, 1925 six pages. (Memphis, 1925); R.L. Polk & Co.’s Memphis City 3 Gerald Capers, The Biography of a River Town— Directory, 1926 (Memphis, 1926); R.L. Polk & Co.’s Memphis: Its Heroic Age (Memphis, Tenn., rep. ed., Memphis City Directory, 1927 (Memphis, 1927); Woolf 1966); Bond and Sherman, Memphis in Black and Fortas, United States of America, Bureau of the Census. White (Charleston, S.C., 2003), pp. 74-93; Robert A. Fifteenth Census of the United States, 1930. Washington, Lanier, Memphis in the Twenties: The Second Term D.C.: National Archives and Records Administration, of Mayor Rowlett Paine, 1924-1928 (Memphis, 1979), 1930. T626, 2667 rolls, viewed at www.ancestry.com; pp. 72-74. Coincidentally, one of the most enduring Bond and Sherman, Memphis in Black and White, histories of Memphis was written by Capers, a friend of p. 80. 7 Fortas’s and fellow member of the Southwestern class of Charles Edmundson, “The Great Persuader,” Com- 1930. A southern river town with a sizable immigrant mercial Appeal, December 11, 1966, Mid-South population, Fortas’s Memphis was not unlike Brandeis’s Section, 13; Charles B. Seib and Alan L. Otten, Louisville—although Brandeis grew up more than fifty “Abe, Help!—LBJ,” Esquire, 63 (June, 1965), 147. years before. On Louisville at the time, see Melvin I. Kalman, relying on an interview with Fortas’s sister Urofsky, Louis D. Brandeis: A Life (New York, 2009), Esta, offers a slightly different assessment of the Fortas pp. 1-24. family’s socio-economic status, for Esta recalled that 4 It is astonishing how little can be said with certainty the family always owned an automobile and employed about the Fortas family. The census for 1910 lists them as a domestic servant. It is hard to know—given the facts “Woolf” and “Ray,” whereas they call themselves stated above—whether these were truly markers of the “William” and “Rachel” thereafter. They are both listed Fortas family’s upward mobility. See Kalman, Abe in the 1910, 1920, and 1930 censuses as having been born Fortas, pp. 7-8. 8 in England. In 1910 and 1920, they also state that their Population figures are from “U.S. Demography 1790 to parents were born in England, but in 1930, just before his the Present,” viewable at https://www.socialexplorer. death, Woolf listed his parents as having been born in com/6f4cdab7a0/explore; Preston Lauterbach, Beale Russia. In the 1940 census, Rachel, whose maiden name Street Dynasty: Sex, Song, and the Struggle for the was Berzansky, continues to list her birthplace as Soul of Memphis (New York, 2015). 9 England. Kalman’s biography, relying on an interview Transcript, Abe Fortas Oral History Interview, 8/14/ with Esta Fortas, describes Woolf and Ray as having 69, by Joe B. Frantz, Internet Copy, LBJ Library, 28; been born in Russia and Lithuania, respectively, and Bond and Sherman, Memphis in Black and White, p. having later spent time in England before coming to the 86; Lauterbach, Beale Street Dynasty, pp. 208-10; United States. A history of the Fortas family, obtained by Kenneth T. Jackson, The Ku Klux Klan in the City, the author from Fortas descendant Marcia Levy, contains 1915-1930 (New York, 1967), p. 46. On the lynching the same information. Joseph Fortas, who arrived in of Ell Persons, see also Kenneth W. Goings and Gerald the U.S. in 1884, was naturalized in 1899. His L. Smith, “‘Unhidden’ Transcripts: Memphis and naturalization record shows him as having migrated African American Agency, 1862-1920,” in Goings from Russia, and it is highly doubtful that the brothers and Raymond A. Mohl, eds., The New African were born in different countries. Still, Rachel’s 1946 American Urban History (Thousand Oaks, Calif., newspaper obituary describes her as a native of Leeds, 1996), pp. 142-46. 10 England. Thus, I am basing the idea of her Lithuanian Edmundson, “Great Persuader”; Berkley Kalin, “The heritage on Kalman’s interview with Esta Fortas and the Cortese Brothers and the Early Memphis Sound,” Fortas family history. Museum Quarterly 1 (1972), n.p. 5 11 Joseph Fortas and Woolf Fortas, Thirteenth Census of Seib and Otten, “Abe, Help! – LBJ,” 147; Kalman, the United States, 1910 (NARA microfilm publication Abe Fortas, pp. 8-9; “Fortas’s Loves: Music, Law and 334 JOURNAL OF SUPREME COURT HISTORY 19 Kinfolks,” Memphis Press-Scimitar, July 1, 1968; “Fortas Made Hit At Southwestern,” Memphis Press Southside High School Scrapper Yearbook, 1926. James Scimitar, July 30, 1965 Record of Abe Fortas, Rhodes Dickerson, based only on the fact that Fortas lived a few College Registrar; Address by Abe Fortas, 1. 20 blocks from Beale, claims that Fortas “was a product of At the time, the college asked each student to indicate a the wild and wooly Beale Street music scene.” Not only “church” preference, and a total of ten students listed does Dickerson imply that Fortas played on Beale Street, “Jewish.” Another smattering of students left this item but he also asserts that Fortas “met the linchpins of blank. There were a total of 192 students in Fortas’s Memphis’s underworld community of drug dealers, freshman class and 155 students in the sophomore class. criminals, bootleggers, and other nefarious types.” He I have not tabulated these numbers for the junior and also implies that Fortas had a sexual relationship with the senior classes, which would have enrolled at the college blues musician “Memphis Minnie.” None of these claims during the time that the institution was still in Clarksville, is supported by evidence or corroborated by other Tennessee. 21 sources. See Dickerson, Goin’ Back to Memphis: A “Try Co-Ed on Evolution Law,” The Sou’wester, Century of Blues, Rock’n’Roll, and Glorious Soul March 4, 1927; “Fiddling Abe Fortas, 22, Leaves (New York, 1998), pp. 38-40. Memphis Dancers.” 12 22 Edmundson, “Great Persuader”; “Fiddling Abe Fortas, “Selection of Fortas Catches Friends Off Guard,” 22, Leaves Memphis Dancers For High Legal Post With Commercial Appeal, July 29, 1965; The Nineteen Uncle Sam’s Farm Bureau,” Memphis Press Scimitar, Hundred Thirty Lynx Published by the Student Body of November 27, 1933. Southwestern, the College of the Mississippi Valley 13 Edward J. Larson, Summer for the Gods: The (Memphis, Tenn., 1930), pp. 108-109, 115-17, 162-64. 23 Scopes Trial and America’s Continuing Debate over Robert D. Franklin to the Editor, Commercial Appeal, Science and Religion (New York, 1997), pp. 24-25; April 18, 1982; “Abe Fortas No Protege Of McKellar or Roger Biles, Memphis in the Great Depression Stewart,” Press Scimitar, June 20, 1942. The word (Knoxville, Tenn., 1986), p. 24. “hustler” at the time carried none of the negative 14 Selma Lewis, A Biblical People in the Bible Belt: connotations that it later acquired. See The English The Jewish Community of Memphis, Tennessee, Dialect Dictionary, v. III, H-L, (New York, 1962). 24 1840s-1960s (Macon, Ga., 1998), pp. 9, 100. The Nineteen Hundred Thirty Lynx, Rhodes College 15 Lewis, Biblical People, pp. 98-99, 122-23; Sam Archives; “Selection of Fortas Catches Friends Off Shankman, The Peres Family (Kingsport, Tenn., 1938), Guard,” Commercial Appeal, July 29, 1965. 25 p. v. See also, Shankman, Baron Hirsch Congregation: “Two Band to Play at ‘Pan,’” The Sou’wester, From Ur to Memphis (Memphis, Tenn., 1957). Both of March 15, 1929; “Pepsters Cheer Over WMC Tonight,” Fortas’s biographers mistakenly refer to Hardwig Peres The Sou’wester, November 1, 1929; “Visitors Guests of as “Rabbi Peres.” He was not a rabbi; his father Jacob Beta Sigma,” The Sou’wester, November 8, 1929. 26 was the rabbi. Kalman, Abe Fortas, p. 12; “Four Students are 16 Raymond Cooper, Southwestern at Memphis: 1848- Aspirants for President,” The Sou’wester, May 3, 1948 (Richmond, Va., 1949), pp. 114-40; Southwest- 1929; The Lynx, Southwestern (Memphis, Tenn., ern: The College of the Mississippi Valley (formerly 1929), 45; Transcript, Abe Fortas Oral History Interview, Southwestern Presbyterian University, Clarksville, Ten- 28. 27 nessee) Catalogue. (Memphis, Tennessee, 1927), pp. 22- Diehl to Secretary of the Harvard Law School, April 8, 29, Rhodes College Archives. Charles Diehl became 1930, Charles E. Diehl Papers, Rhodes College Archives, president of the college in 1917. In 1920 the college first Memphis, Tennessee. 28 began making preparations to move to Memphis and Hardwig Peres to George Parmley Day, April 16, changed its name from Southwestern Presbyterian 1930, Hardwig Peres to Diehl, April 25, 1930, Fortas- University to Southwestern. Later, the institution Peres Papers, University of Memphis Special Collec- changed its formal name again to “Southwestern at tions, Memphis, Tennessee; Diehl to Charles Clark, Memphis.” It was never formally known as “Southwest- April 29, 1930, Diehl Papers, Rhodes College Archives. 29 ern College.” The college’s largest enrollment while in Fortas to Hardwig Peres, May 1, 1930, as published in Clarksville was 187 students. Berkley Kalin, “Young Abe Fortas,” West Tennessee 17 Southwestern: The College of the Mississippi Historical Society Papers, 34 (1980), 97. 30 Valley, p. 60. Kalman, Abe Fortas, p. 13; The Alumni Magazine at 18 Cooper, Southwestern at Memphis, pp. 134-40; Southwestern (October 1930) referred to this as the Stephen R. Haynes, The Last Segregated Hour: The “Israel H. Peres Scholarship.” Edmundson, “Great Memphis Kneel-Ins and the Campaign for South- Persuader,” 16; Record of Abe Fortas. 31 ern Church Desegregation (New York, 2012), pp. William Fortas died on December 14, 1930 of “acute 77-78. myocarditis” caused by “pulmonary malignancy”—lung  MEMPHIS AND ABE FORTAS 335 39 cancer. William Fortas, State of Tennessee, State “Abe Fortas to Visit,” Press-Scimitar, May 11, 1943; Department of Health, Division of Vital Statistics, Fortas to Hardwig Peres, January 20, 1944, as published Certificate of Death, December 14, 1930, available at in Kalin, “Young Abe Fortas,” 105; Diehl to Senator http://register.shelby.tn.us/imgView.php? Kenneth McKellar, January 17, 1944, Abe Fortas Papers, imgtype=pdf&id=133219301214 Temple Israel Archives, Memphis, Tennessee. 32 40 Diehl to Fortas, January 9, 1931, Fortas to Diehl, Fortas to Peres, January 27, 1944, as published in February 4, 1931, Diehl Papers, Rhodes College “Young Abe Fortas,” p. 106; Fortas to Peres, Peres Archives. Papers, Box 2, Folder 14, Temple Israel Archives, 33 Charles E. Diehl to Abe Fortas, October 24, 1933, Memphis, Tennessee. 41 Fortas Papers, Rhodes College Archives, Memphis, Diehl to Fortas, December 14, 1945, Diehl Papers, Tennessee; Haynes, Last Segregated Hour, pp. 77-79. Rhodes College Archives. 42 Working in the New Deal was a common career path for “Abe Fortas’s First Speech,” Memphis Press Scimitar, Jewish lawyers who, at the time, would not have had May 7, 1943; “Abe Fortas, Who Saw History in Making, many opportunities on Wall Street. See Jerold S. Returns for Southwestern Talk Tonight,” Memphis Press Auerbach, “From Rags to Robes: The Legal Profession, Scimitar, June 3, 1946. Fortas notes starting the firm in a Social Mobility and the American Jewish Experience,” 1946 letter to Peres. Apparently, Paul Porter joined the American Jewish Historical Quarterly, 66 (1976), firm later. See Fortas to Peres, January 21, 1946, Peres 249-84. Family Papers, Box 2, Folder 14, University of Memphis 34 Fortas to Diehl, March 29, 1934; “A Few Promi- Special Collections, Memphis, Tennessee. 43 nent Southwestern Men,” Diehl Papers, Rhodes Abe Fortas, “Alumni Day Address: An Approach to College Archives. Attorney General Thomas Watt Progressive Policy,” Southwestern Bulletin, 33 Gregory, Solicitor General W. L. Frierson, Senator (July 1946), 4, 7, Rhodes College Archives. 44 Key Pittman of Nevada, and Senator Nathan Bachman Minutes of the Board of Directors of Southwestern at of Tennessee all graduated from Southwestern Memphis, Held in the Directors’ Room, Palmer Hall, Presbyterian University, as it was called, during the September 10, 1946, Rhodes College Archives, available 1880s and 1890s. Southwestern President John David at http://hdl.handle.net/10267/7497; “2 Withdrawn from Alexander referred to Diehl keeping Fortas’s thesis on the UN, Fortas Says,” Press Scimitar, June 5, 1946. 45 his desk in his introduction of Fortas when he spoke Diehl to Fortas, December 7, 1948, Diehl Papers, on campus in 1966. See “Introduction of Abe Fortas Rhodes College Archives. Fortas’s gift was $500. 46 by President Alexander, at Opening Convocation, “Services Sunday for Mrs. Fortas,” Memphis Press September 16, 1966,” 4, Fortas Papers, Rhodes Scimitar, October 11, 1946; Hardwig Peres, State of College Archives. Tennessee, Department of Public Health, Division of 35 “Memphian Studies Wage Assignments,” Com- Vital Statistics, Certificate of Death, November 5, 1948, mercial Appeal, March 26, 1933; “Excelsior is available at http://register.shelby.tn.us/imgView.php? Motto of Young Abe Fortas,” Commercial Appeal, imgtype=pdf&id=399719481105; Charles E. Diehl, October 12, 1933; “‘Fiddlin’ Abe Fortas Visiting State of Tennessee, Department of Public Health, Homefolk Here,” Press-Scimitar, September 27, Division of Vital Statistics, Certificate of Death, 1937; “Fiddling Abe Fortas, 22, Leave Memphis February 27, 1964, available at http://register.shelby.tn. Dancers For High Legal Post With Uncle Sam’s us/imgView.php?imgtype=pdf&id=10901964-02-27 Farm Bureau,” Press-Scimitar, November 27, 1933; Diehl remained in Memphis for the duration of his life—he “Memphis Abe Fortas Promoted—Chosen General died in 1964—but there is no surviving record of Counsel of PWA,” Press-Scimitar, April 22, 1939; correspondence with Fortas beyond his tenure as “Abe Fortas Is Given Post of WPA Counsel,” president. 47 Commercial Appeal, April 23, 1939; “Abe Moves Diehl to Peres, August 27, 1936, Peres to Diehl, Up,” Press-Scimitar, April 24, 1939. August 28, 1936, Diehl Papers, Rhodes College 36 Shankman, Peres Family, p. v. Archives. 37 48 Fortas to Hardwig Peres, April 19, 1939, as published Alan Fortas eventually wrote a book about his in Kalin, “Young Abe Fortas,” 98. association with the King of Rock-n-Roll: Elvis— 38 Fortas to Hardwig Peres, September 15, 1943, as From Memphis to Hollywood: Memories from My published in Kalin, “Young Abe Fortas,” p. 101. See also Eleven Years with Elvis Presley (Ann Arbor, Mich., Kalin, “Abe Fortas of Memphis,” Southern Jewish 1992). Many members of the Fortas family continue to Heritage, 5 (1992), 3; Kalman, Abe Fortas, pp. 105-107. live in Memphis. Many others are buried there. 49 Excessive exposure to the sun or physical exertion, Fortas to Diehl, April 1, 1949, Diehl Papers, Rhodes according to Kalman, could have caused Fortas to go College Archives; Peyton Rhodes to Fortas, June 10, blind. 1955, Fortas Papers, Rhodes College Archives; Fortas to 336 JOURNAL OF SUPREME COURT HISTORY Peyton Rhodes, March 24, 1958, Rhodes Papers, Rhodes Remembering Memphis and Southwestern in 1968—A College Archives; Frederic H. Heidelberg to Fortas, Panel Discussion,” Tennessee Historical Quarterly, 58 May 5, 1955, Fortas Papers. (Spring, 1999), 70-87. 50 58 “Selection of Fortas Catches Friends Off Guard,” South Carolina v. Katzenbach, 383 U.S. 301 Commercial Appeal, July 29, 1965; “Fortas Made Hit At (1966); Harper v. Virginia Board of Elections, Southwestern,” Commercial Appeal, August 5, 1965; 383 U.S. 663(1966); Green v. New Kent County, Edmundson, “Great Persuader.” 391 U.S. 430 (1968); Brown v. Louisiana, 383 U.S. 51 E. Digby Baltzell and Howard G. Schneiderman, 131 (1966); Abe Fortas, “The Amendment and Equality “From Rags to Robes: The Horatio Alger Myth and the Under Law,” in Bernard Schwartz, The Fourteenth Supreme Court,” Society, 28 (1991), 47. Arthur Gold- Amendment: Centennial Volume (New York, 1970), p. berg, it should be noted, had similarly humble roots. 113; Abe Fortas, “March to Decency,” New York Times, 52 Anthony Lewis, “A Tough Lawyer Goes to the Court,” July 18, 1972, 33. 59 New York Times Magazine, August 8, 1965, 11; Fortas, On the nomination of Fortas for Chief Justice and his “Approach to Progressive Policy,” 8. subsequent resignation from the Court, see Murphy, 53 Lewis, “Tough Lawyer Goes to the Court,” 11. See Fortas, pp. 477-577; Kalman, Abe Fortas, pp. 319-78; also Lewis, Gideon’s Trumpet (New York, 1964), pp. Robert Shogan, A Question of Judgment: The Fortas 118-38; Gideon v. Wainwright, 372 U.S. 335 (1963). Case and the Struggle for the Supreme Court (New See also, “Abe Fortas Suggests ‘Fresh Thinking’ About York, 1972); Robert David Johnson, “Lyndon B. Criminals,” Commercial Appeal, May 14, 1964. Johnson and the Fortas Nomination,” Journal of Supreme 54 John Brennan Getz, “The Shelby County Public Court History, 41 (2016), 103-22; Henry J. Abraham, Defender’s Office,” West Tennessee Historical Society Justices, Presidents, and Senators: A History of Papers, 56 (2002), 122-27; Address by Abe Fortas; the U.S. Supreme Court Appointments from Edmundson, “Great Persuader,” 13. Washington to Clinton (Lanham, Md., 1999), 214-19; 55 Epperson v. Arkansas, 393 U.S. 97 (1968). Fortas Peter Charles Hoffer, Williamjames Hull Hoffer, and quoted in Edward J. Larson, Trial and Error: The N.E.H. Hull, The Supreme Court: An Essential American Controversy Over Creation and Evolution History (Lawrence, Kan., 2007), 344-45; John Anthony (New York, 1985), p. 114. Maltese, The Selling of Supreme Court Nominees 56 Abington v. Schempp, 374 U.S. 203 (1963); Epperson (Baltimore, Md., 1998), pp. 71-72. 60 v. Arkansas, 393 U.S. 97, 107-109. See also, for a Abe Fortas, “Equal Rights—For Whom?” New York discussion of Fortas, the Scopes Trial, and Epperson, University Law Review, 42 (1967), 412. 61 Larson, Trial and Error, pp.113-17; Larson, Summer Quoted in Shogan, Question of Judgment, p. 23; of the Gods, pp. 253-57; Larson, “The Scopes Trial and Lyndon Baines Johnson, The Vantage Point: Perspec- the Evolving Concept of Freedom,” Virginia Law tives on the Presidency, 1963-1969 (New York, 1971), Review, 85 (1999), 521-27. p. 544. On Fortas’s Supreme Court career, in addition to 57 Address by Abe Fortas, 5. On the integration of the biographies listed above, see Justin Braun, “Did He Southwestern at Memphis, see Haynes, Last Segregated Measure Up? An Analytic Appraisal of the Supreme Hour, pp. 75-81; Timothy S. Huebner and Benjamin Court Career of Justice Abe Fortas,” West Tennessee Houston, eds. “Campus, Community, and Civil Rights: Historical Society Papers, 61 (2007), 1-31.