A Mistake in the Early 1970s Still Haunts Supreme Court Ethics

The fury among liberals over news of an upside-down flag — a “Stop the Steal” symbol — flying in Supreme Court Justice Samuel Alito’s yard was the just latest in a constant barrage of ethical controversies tied to the Court.

Over the past year, news outlets have uncovered extravagant trips and gifts Justices Alito and Clarence Thomas received from wealthy benefactors, often without disclosing them as required by federal law. With more than $4 million in gifts over the past two decades, Thomas has far surpassed the other justices according to Fix the Court, a watchdog group that promotes judicial ethics and transparency. And the revelations haven’t been limited to the conservative justices: Sonia Sotomayor’s staff apparently pressured institutions hosting her appearances to purchase her books. (Thomas and Alito have defended their actions and the Supreme Court has said its staff help the Justices comply with ethics guidelines.)

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These scandals stem directly from a failed opportunity to impose a binding ethics code on the justices after a bombshell scandal in the late 1960s forced Justice Abe Fortas to resign. While his peers pressured Fortas into departing from the Court and the incident sparked efforts to clarify the ethics code applying to the federal judiciary, these efforts had a fatal flaw. 

They left it to the justices to decide how to follow these guidelines. And time and again, the justices have maintained that while they voluntarily subscribe to portions of the guidelines, they retain absolute discretion over their implementation. In serving as their own judges, the justices have shielded their ethical decision-making from outsiders and one another. As a result, the Court’s ethical tenets have remained vague, unenforceable, and largely exempt from scrutiny.

Fortas’ 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 — tapped him to serve 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’ salary, the long-term elements of the deal appeared even more suspect. The foundation agreed to keep paying Fortas after his eventual withdrawal from the position and, upon his death, the annual compensation would revert to his wife.

Read More: Roberts Rejects Senate Democrats’ Request to Discuss Ethics and Alito Flag Controversy

Fortas’ law clerk warned him about the impropriety of the arrangement, but the justice dismissed such concerns. Only after the Department of Justice indicted Wolfson on charges of securities fraud in the fall of 1966 did Fortas reverse course and return the one payment he had received.

On Oct. 28, 1968, a low-level bureaucrat tipped off LIFE Magazine’s William Lambert about Fortas’ connection to Wolfson. The tip came only days after a filibuster in the Senate — the first time the parliamentary weapon had been deployed against a Court nominee — had scuttled Fortas’ ascension to be chief justice. Lambert was intrigued by the possibility of uncovering more about the beleaguered justice.

The reporter’s investigation advanced in fits and starts. Pivotally, on April 10, 1969, he approached Assistant Attorney General Will Wilson. Instead of gaining more information, Lambert unwittingly handed the new Nixon administration the ammunition it needed to launch a project to remake the Court ideologically. Wilson admitted as much to Fortas’ biographer years later. “I knew what kind of a potential coup we had,” he recalled, because in “all candor, we wanted Fortas off the Court.”

After receiving a go-ahead from William Rehnquist, then the head of the DOJ’s Office of Legal Counsel, investigators discovered that Fortas had broken no laws and had rightfully recused himself in an appeal involving Wolfson, thereby avoiding a conflict of interest. Though Wolfson may have dropped Fortas’ name in his dealings with prosecutors and asked for the justice’s help, Fortas had never intervened on his behalf. But the timing of Fortas’ association with Wolfson and his oversized payments for a part-time position looked suspicious, especially after the Senate had uncovered a similarly outsized remuneration package months earlier for a course Fortas taught at the American University Law School.

On May 4, Lambert’s story ran in LIFE, publicly revealing Fortas’ arrangement with Wolfson.

Acting on President Richard Nixon’s instructions, Attorney General John Mitchell deftly leaked additional damning details to the press. Each new tidbit triggered a fresh round of recriminations, turning even Fortas’s Democratic defenders against him: “Fortas must resign,” Maryland Senator Joseph Tydings uttered on the Senate floor. “He must resign immediately.” 

As the media hounded Fortas at his Georgetown manor, several judges and legal scholars along with the American Bar Association added to the growing chorus of condemnations. Justice Hugo Black’s wife aptly recorded the mood in her diary: critics, she wrote, were “screaming for his scalp.” 

While Fortas’ detractors demanded his resignation under the threat of impeachment, the justices decided to handle the affair internally. On May 7, Nixon dispatched Mitchell to meet with Chief Justice Earl Warren to share documentation of the Fortas-Wolfson relationship. After the meeting, the chief justice told his assistant, “He can’t stay.” Warren then privately met with his colleagues to call for Fortas’ removal. The chief justice, a former law clerk noted, was “very disappointed” and “disillusioned” and felt that Fortas’ “credibility… had been fundamentally damaged beyond repair.” At Warren’s behest, Black urged Fortas to resign “for the good of the Court.”

Bowing to their wishes, just 10 days after the release of the LIFE article, Fortas became the first justice to resign in scandal.

Throughout the nation’s history, the Court had operated under limited oversight and tenuous ethical directives. But with the shocking and unprecedented denouement placing the question of judicial ethics front and center in American life, the New York Times anticipated that the Fortas imbroglio “might have a more lasting impact.”

Read More: Breaking Down the Supreme Court’s Ethics Rules as Justices Come Under Fire

Warren’s concern for the public’s perception of the Court led him to direct the Judicial Conference, an administrative body, to ramp up the judiciary’s ethical rules. Spurred by Fortas’ resignation, the ABA also reconsidered an advisory set of principles forged in 1924. Working on parallel tracks, the ABA toughened its Code of Judicial Conduct in 1972. A year later, the Judicial Conference adopted the ABA’s 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 upgrades to the laws and codes governing judicial ethics and financial disclosures over the next half century. Though “significantly less stringent” than those applied to officials outside of the judiciary, according to a Senate Subcommittee in 2021, these changes enhanced the creaky ethical framework that had been in place in 1969.

Yet, there was a fatal flaw in these changes: while they applied to lower court judges, they weren’t binding for the justices themselves. And that might not have been possible, even had these bodies endeavored to do so. The Court — unlike lower courts — was created by the Constitution, not Congress. That may place the justices beyond the reach of the various codes and laws governing judicial behavior. And short of impeachment, which hasn’t been used against a justice since 1804, there might be no other way for Congress to hold the justices accountable. Chief Justice John Roberts Jr. made this abundantly clear in 2011. While granting 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, barred the application of any external strictures on 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 brushed aside criticism over 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 Solicitor General in the Obama administration.

Only after pressure spurred by the recent flurry of revelations did the justices finally succumb to establish a Code of Conduct last November. The Senate Judiciary Committee echoed other critics in pointing out that though the code constituted progress, it still fell short of the standards applying to other federal judges, fashioned advisory guidelines rather than mandates, and lacked “any meaningful enforcement mechanism.”

That leaves the justices to make their own choices — with little anyone, including their brethren, can do to compel them to act. It took a jurist of Warren’s renown to convince the justices to act in unison in the Fortas case, an undertaking that may never be replicated even in the face of significant ethical lapses.

Though initially defiant, Fortas acceded to “resign in the hope that this will enable the Court to proceed… free from extraneous stress,” he wrote to Warren, and no longer “adversely affect the work and position of the Court.” His sacrifice went unheeded. 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 the decisions rendered by the Court and calling its legitimacy into question.

Michael Bobelian is a journalist who has written about the Supreme Court, legal affairs, and history for the Washington Post, Los Angeles 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 here. Opinions expressed do not necessarily reflect the views of TIME editors.