In a government under law, Chief Justice John Marshall observed in the early 19th century, a judge must be "perfectly and completely independent, with nothing to influence or control him but God and his conscience." To help protect him from temptation, the framers of the Constitution created a free and independent federal judiciary, with life tenure, a handsome salary and protection from capricious removal or congressional retaliation. The judge's part of the bargain is implicit but clear. He is expected to adhere to moral standards far more stringent than those of the ordinary citizen. As Washington Attorney Joseph Borkin has written, the judge is "the epitome of honor among men, the highest personage of the law." The American Bar Association stipulates that he must be innocent of "impropriety and the appearance of impropriety."
It thus came as a distinct shock to most Americans when LIFE reported that Supreme Court Justice Abe Fortas, an appointee, longtime confidant and private legal retainer of Lyndon Johnson, had accepted a $20,000 fee from the family foundation of Stock Speculator Louis Wolfson, who was then under investigation and is now in jail. Fortas—who admitted that LIFE'S facts were essentially correct—had held the money for almost a year, returning it three months after Wolfson's indictment. Although Fortas had not broken any law, he had clearly been guilty of a gross indiscretion.*
Hands Off. The disclosures hit close to the apex of federal authority at a time when all authority is under challenge. They immediately became the major topic of conversation in Washington, from the corridors of the Capitol to Georgetown cocktail parties. Fortas' friends and fellow Democrats found little to say in his defense. Republicans generally adopted the President's hands-off attitude. Richard Nixon, whose attacks on the Supreme Court's liberal cast figured prominently in his campaign, has been assiduously mending fences with the high court of late.
In their hearts, many Republicans may now feel more strongly than ever that Nixon was right in using his considerable influence as a presidential candidate last fall to block Fortas' nomination as Chief Justice. In public, the G.O.P. was more concerned with avoiding any semblance of vindictiveness against the court's only Jew (though the New York Post, a Jewish-oriented newspaper, called for Fortas' resignation). In fact, Republicans had little reason to involve themselves in the furor. As one White House aide put it: "The feeling around here is that Fortas is going to have to resign, so why get into it?"
The Fortas contretemps may quite possibly be the most serious in the Supreme Court's 180 years. No Supreme Court Justice has ever resigned under pressure. Only one—Samuel Chase in 1804—has been impeached, but on such blatantly political grounds that he was acquitted. Three years ago, it was disclosed that Justice William O. Douglas was receiving $12,000 a year in fees from a foundation linked to Las Vegas gambling interests. However, no one connected with the foundation was in immediate need of highly placed connections, as Wolfson and his associates were.