Virginia “Ginni” Thomas’s connections to controversial conservative causes, including her supportive Facebook posts on the day of the Jan. 6 Capitol insurrection, have sparked calls for her spouse, Supreme Court Associate Justice Clarence Thomas, to resign or be impeached, following a revealing New Yorker profile by Jane Mayer. Journalist Michael Tomasky wrote in the New Republic that “in a sane world,” Mayer’s exposé “would set off a series of events that would lead to her husband Clarence Thomas’s impeachment and removal from the Supreme Court.”
Resignation or impeachment is highly unlikely but wouldn’t be unprecedented. The only time a Supreme Court justice has resigned under threat of impeachment, the decision to step down was prompted in part by allegations of wrongdoing by the justice’s spouse.
And if history is any guide, Republicans would have good reason to oppose calls for Thomas to leave the court.
The justice who resigned was Abe Fortas, who had been a President Lyndon B. Johnson nominee. Fortas stepped down in May 1969, four months after Richard Nixon took office as president. Fortas’s downfall was part of a broader campaign by Nixon to dismantle the liberal Warren Court and create vacancies that he could fill with candidates in his own political image. Nixon’s success in ousting and replacing Fortas ended up putting a profound conservative stamp on the court for more than three decades to come.
As a young man, Fortas was by all accounts a talented lawyer. Born in 1910 in Memphis to Jewish parents who had emigrated from England, he enrolled at Yale Law School (where Clarence Thomas later studied) and served as editor in chief of the Yale Law Journal. He later taught law at Yale and worked as one of the young “New Dealers” in Franklin D. Roosevelt’s “brain trust.” He eventually formed a powerhouse law firm in Washington, with fellow alums from the Roosevelt administration, Paul Porter and Thurman Arnold. The firm known then as Arnold, Fortas and Porter is today the megafirm Arnold & Porter.
Fortas was hired by Rep. Lyndon B. Johnson (D-Tex.) in 1948 to represent him in a primary election dispute in a race for the U.S. Senate. Johnson won the seat. The relationship between the two men blossomed over time, with Fortas becoming one of LBJ’s closest advisers.
In January 1963, Fortas argued for an indigent defendant’s right to an appointed lawyer in a criminal trial in Gideon v. Wainwright, a case that established the fundamental right to counsel under the Sixth and 14th amendments to the Constitution.
Two years later, Johnson, as president, nominated Fortas to replace Arthur Goldberg, a Kennedy appointee, on the Supreme Court. In order to make his own appointment to the court, Johnson had convinced Goldberg to step down to become ambassador to the United Nations, with a vague promise that he might eventually be named secretary of state. (He never was.) Goldberg had occupied what was unofficially called the “Jewish seat” on the court, following in the line of Benjamin Cardozo and Felix Frankfurter. Fortas fit into that tradition.
In June 1968, Chief Justice Earl Warren decided he needed to retire so that Johnson could name his successor, but he botched the timing. By then, Johnson had already decided not to seek reelection, and Richard Nixon seemed poised to win the presidency. When Johnson announced his nomination of Fortas to be elevated to the chief justice position, and of a judge from the U.S. Court of Appeals for the 5th Circuit to replace Fortas, battle lines formed in the Senate, with the enthusiastic backing of the Nixon campaign.
Republicans and Southern Democrats united to filibuster the Fortas nomination, sharing a belief that he was too liberal. They dug up dirt on Fortas showing that he had accepted a $15,000 honorarium to teach summer classes at American University — money that had been raised by Fortas’s former law partner, Paul Porter. Many justices, then and now, have accepted money for talks, travel or board memberships, so the practice was not entirely out of bounds — but the Nixon forces were determined to block the Fortas nomination.
Johnson was a lame duck in an election year, and like President Barack Obama with Merrick Garland in 2016, he was powerless to move his nominee in the face of a determined opposition in the Senate. Fortas withdrew his name from consideration on Oct. 2, 1968, when pro-Fortas senators could not muster enough votes to overcome the filibuster.
Nixon would pick the next chief justice of the United States.
But Nixon was just getting started. The Justice Department, led by John Mitchell, continued to investigate Fortas. It uncovered evidence that Fortas had accepted a $20,000 retainer to serve on the board of a charitable foundation controlled by Louis Wolfson, a financier who was about to be indicted and later imprisoned for the sale of unregistered stock.
Fortas returned the money, but there was evidence that the offer had been for an annual retainer. Wolfson even asked Fortas to intercede on his behalf, along with Johnson, to ask Nixon to grant him a pardon once convicted.
There was little evidence that Fortas mediated in any way on behalf of Wolfson — there never seemed to be a quid pro quo. The Justice Department, including a young assistant attorney general named William H. Rehnquist, struggled to determine whether a sitting justice could be indicted on a crime charge, or whether the only remedy was impeachment by Congress.
Nixon persuaded Warren to remain chief justice through the June term. Fortas, meanwhile, resisted resignation until Mitchell played his ace in the hole.
Without any new evidence, the Justice Department reopened an old investigation into Fortas’s wife, Carolyn Agger, who was also a Yale Law graduate and a top tax lawyer at Arnold & Porter. “Mitchell’s next move was political hardball,” John Dean, a Justice Department lawyer who would later plead guilty to a felony for his role in the Watergate scandal as Nixon’s White House counsel, wrote in his 2001 book “The Rehnquist Choice.”
To increase pressure on Fortas, the Justice Department convened a grand jury to determine whether Agger had engaged in obstruction of justice by deliberately withholding documents relevant to a price-fixing case that were allegedly found in her office safe.
The potential felony charges against his wife broke the stalemate. Warren convinced Fortas to resign. The grand jury looking into allegations of wrongdoing by Agger went away.
Fortas’s resignation began a radical change in the makeup of the Supreme Court. Nixon now had two seats to fill: the chief justice position and the Fortas seat. He tapped Warren Burger as chief justice, and after two failed attempts to appoint Southern judges (Clement Haynsworth and G. Harrold Carswell), he nominated Harry Blackmun to take the Fortas seat.
A year later, Justices Hugo Black and John Marshall Harlan became sick and resigned in September 1971, opening the door for the simultaneous nominations of Lewis Powell and William H. Rehnquist. Rehnquist would later be elevated by President Ronald Reagan to become chief justice — meaning that Nixon appointees held the position of chief justice for more than 36 years. It was Nixon’s most lasting and important legacy.
Now, with the shoe on the other foot, would Republicans join Democrats in any effort to impeach Justice Thomas or force him out? If partisan politics makes it a long shot, then the lessons of history make it a virtual impossibility. The story of Fortas and Nixon shows just how long a tail Supreme Court appointments — and resignations — can have.