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Reading It All. Apart from his reputation as a liberal—a useful but sometimes misleading label when applied to judicial decisions—Fortas has a personal concern for social justice. At his urging, Arnold, Fortas, and Porter, his law firm in Washington for nearly two decades, took on something like 100 free cases—far more than normal legal ethics would dictate. "He had a strong feeling that a law firm should not be operated completely for profit," says Thurman Arnold, a New Deal trustbuster and former federal appeals judge
As unpaid counsel for the defense in 1954 Fortas persuaded the District of Columbia Court of Appeals to adopt a broadened rule for criminal insanity ("An accused is not criminally responsible if his unlawful act was the product of mental disease or defect"). That rule brought the law, which had not been changed for more than a century, in line with modern psychiatry. The decision has induced other jurisdictions to redefine insanity.
Indeed, for a layman, his understanding of psychiatry is profound. Besides being a trustee of the William Alanson White Psychiatric Foundation, Fortas has written often for its journal, Psychiatry. Preparing to sit on one case that required psychiatric backing, he asked an expert to "give me just as much to read as you can think of-and then give me some more." The friend believes he read it all.
Citizen & State. Asked by the court in 1962 to bring before it the case of Clarence Earl Gideon, prisoner No. 003826 at the Florida State Prison, Fortas, even as a private lawyer, was instrumental in shaping the decision that guaranteed any indigent defendant a court-appointed lawyer. Gideon was more than a case; it became an article of faith. As a member of the court, Fortas has supported other decisions that have radically broadened the rights of defendants. "We're not just dealing with the criminal and society," he once told an attorney who was arguing for the police point of view, "but the relation between the citizen and the state.
In Re Gault, a decision he wrote last year is perhaps the high point of his judicial career so far. In theory the juvenile system allowed the judge paternal discretion in dealing with young offenders; in practice, they were often convicted on flimsy evidence. But juvenile courts, said Fortas, should be bound by the same rules as adult courts: "Neither the 14th Amendment nor the Bill of Rights is for adults alone. Under our Constitution, the condition of being a boy does not justify a kangaroo court." A dissent last month from the 5-to-4 decision that labeled public drunkenness a crime may eventually prove to be the majority opinion. Criminal penalties," argued Fortas, "may not be inflicted upon a person for being in a condition he is powerless to change."
"Whenever you put a man on the Supreme Court," Harry Truman once complained, "he ceases to be your friend" Many another President has voiced similar regrets: men frequently have a way of changing once they are confirmed, secure for life and, assuming good behavior, beholden to no one but themselves.