Chris Ellis
Chris Honeysuckle Ellis
Ceremonies a few weeks ago were held to commemorate the 50th anniversary of a revolution in the legal rights of children and youth. Two of them were in Washington, D.C. — at the U.S. Department of Justice and through a gala event attended by juvenile justice leaders. Here, there was nothing, not even a mention in the local media, although the landmark ruling being celebrated was written by Supreme Court Justice Abe Fortas, a largely forgotten Memphian.
In a city known for legendary stories of its heroes, Fortas is arguably the most improbable, rising from an immigrant family living in an inhospitable neighborhood known for assaults, drugs, and prostitution to become “Fiddlin’ Abe” on 1920s Beale Street, to a decades-long legal career and into the halls of power in Washington, ultimately becoming a justice on the nation’s highest court.
It was a long way from a Beale Street music scene in which he was a peer of young Furry Lewis, Memphis Minnie, and Sleepy John Estes. Following his graduation from South Side High School in 1926 and Southwestern at Memphis (now Rhodes College) in 1930, Fortas attended Yale Law School and then moved to Washington, D.C. He became a staunch New Dealer and later challenged the red scare demagoguery of Senator Joseph McCarthy. Most importantly, he forged a close friendship with Lyndon Johnson that added to his formidable power as a D.C. insider.
As an adviser to President Johnson, Fortas wrote much of LBJ’s Great Society legislation and major presidential speeches and formulated the legislation establishing the Kennedy Center. Ultimately, in 1965, Johnson appointed him as associate justice to the Supreme Court.
Even before that appointment, Fortas played a defining force in American jurisprudence. Two years before he took his seat on the high court, the justices appointed him to represent a man sentenced to five years in prison for burglary, after a lower court had refused to appoint a lawyer although he was too poor to hire one. After a presentation later praised by Justice William O. Douglas as “probably the best single legal argument” in his 36 years on the court, the Supreme Court unanimously ruled that poverty should not be an obstacle to fair justice and established the unshakeable right for every accused party to have access to a lawyer.
Fortas was on the Supreme Court bench when a case was heard about a 15-year-old Arizona youth charged with making an obscene phone call. Gerald Gault had been sentenced to the State Industrial School until his 21st birthday, which meant he would be in prison for six years, while the maximum fine he could have received as an adult sentenced for the same crime was a $50 fine or two months in prison.
In this case (In re Gault, 1967), Fortas took on headlong the country’s juvenile justice systems. He wrote that “the condition of being a boy does not justify a kangaroo court,” and his ruling set out that youths should be guaranteed the same due process rights as adults. These included the right to be notified of a charge in a timely way, the right to confront witnesses, the right against self-incrimination, and the right to counsel. For the first time, children became people in the eyes of the law.
Today, Fortas’ In re Gault opinion is recognized as the most important children’s rights ruling in American legal history, which was the reason for the recent celebrations described above. Unfortunately, he was unable to inject more fairness into the juvenile justice system — a challenge that still exists, as shown by the Department of Justice’s continued monitoring of Shelby County Juvenile Court — because his time on the Court was brief.
When LBJ nominated Fortas as Chief Justice to replace Earl Warren, Congress was provoked into a rare successful filibuster, led by Republicans and Democrat Dixiecrats intent on stopping the progressive rulings of the Warren Court. Weakened by the filibuster controversy, Fortas resigned from the court altogether in 1969 as a result of a scandal about accepting money from outside interests while he had worked for Johnson. The New York Times wrote that his abrupt exit overshadowed a “long and brilliantly successful career.” Today, Fortas’ rulings are backbones of the justice system, and his defenses of the First Amendment are accepted as mainstream thought.
His reputation sullied, Fortas remained in Washington until his death in 1982. It is tempting to imagine what might have happened had he returned to Memphis. After all, like most of the people we enshrine as hometown heroes, he was an outsider even when he was here. In a childhood spent in the Beale Street area of immigrant families and African Americans, the injustice and discrimination on display there shaped his view of social justice and fairness, which in turn is now enshrined in federal law.
More to the point, Memphis — a city of second chances — might have been just what Abe Fortas needed.
