We are currently watching what appears to be a coordinated effort to get Clarence Thomas off the Supreme Court. Adam Cohen makes explicit the objective, writing in the New York Times that, as the headline argues, “54 Years Ago, a Supreme Court Justice Was Forced to Quit for Behavior Arguably Less Egregious Than Thomas’s.” Here is how he describes the misconduct of Justice Abe Fortas:

Fortas accepted $20,000 to consult for a foundation working on civil rights and religious freedom. . . . Unfortunately for Fortas, the businessman who started the foundation that had retained him, Louis Wolfson, was investigated by the Justice Department for financial improprieties and eventually convicted of securities violations. In 1966, Fortas quit the foundation and returned all the money he had accepted. There were other clouds around Fortas. His contract with the foundation was originally for $20,000 in annual payments for consulting work for the rest of his life, and there was an earlier controversy over a course he was paid $15,000 to teach at American University while on the court. He also had an unfortunate habit of continuing to offer advice to President Lyndon Johnson, whom he had long advised, even after joining the court. But it was his involvement with Wolfson that forced him off the court.

Cohen is downplaying some of the problems with what Fortas did and omitting others. Here’s how Allen Pusey of the American Bar Association Journal, writing in 2020, explained what Fortas did:

First, there was a $15,000 payment to Fortas for a summer teaching post. Not only was this considered an extraordinary supplement to his $39,500 government salary, the post was funded by former law firm clients. More significantly for a sitting justice, Fortas revealed he had never stopped advising [Lyndon] Johnson — attending White House staff meetings, advising on judicial nominations and reporting on private deliberations by the court.

Faced with a Senate filibuster, Fortas asked Johnson to withdraw his name. He returned to the court only to face another scandal when Life magazine revealed he had been receiving regular payments from Louis Wolfson, a former Wall Street client convicted of fraud. Under their agreement, Fortas was to receive $20,000 a year for life. He had returned the money, but only after Wolfson was indicted.

There are two separate and serious problems here that go well beyond the fact that Fortas received money from friends and former law clients. One, Wolfson was not just some random friend. He was a man in serious hot water with federal authorities — which would lead to his conviction — and thus in more immediate need of cultivating influential legal friends. Two, and arguably more scandalously, Fortas was actively, personally engaged in giving legal and political advice to the president, including compromising the Court’s own secrecy. The president is not an ordinary citizen; the executive branch is a ubiquitous litigant before the Court. LBJ was not just a personal friend; Fortas was involved with his official duties at the time when LBJ nominated Fortas to be chief justice.

Moreover, while it was not public at the time of his resignation, Fortas doubtless knew that the facts were even worse:

After Fortas resigned, Wolfson secretly recorded a 1970 conversation with Fortas that revealed that Fortas had advised Wolfson (while a justice) on his legal difficulties with the SEC. When Wolfson referenced a 1969 letter he sent to Fortas asking for his help in obtaining a presidential pardon, Fortas responded, “Lou, don’t tell the press about that. . . . Because, Lou, that would really look bad. . . . Lou, I will not burden you on what happened after that 1969 letter. . . . Sometime, you know, several years from now when this is all over I will tell you exactly what happened.”

Giving legal advice to a man in the bullseye of a federal investigation and what appears to be Fortas’s involvement in a plan to fix things for Wolfson via a pardon are fairly direct examples of corruption. Cohen should have told his readers this.