A controversial FBI file that reportedly contains allegations of homosexual conduct by Abe Fortas, an Associate Justice of the Supreme Court in the 1960s, is missing, according to the FBI. Never proven, the allegations may have been made as a way for the FBI to threaten Fortas with exposure, encourage his resignation, or prevent his appointment as Chief Justice.

Fortas has been in the news recently because of inaccurate Republican claims about the history of the filibuster and the history of judicial appointments. In 1968 Fortas, who had served as an Associate Justice since 1965, was nominated by President Lyndon Johnson to replace Earl Warren as Chief Justice. Fortas was denied confirmation because of a Republican-led filibuster in the U.S. Senate. According to historians who have studied the episode, the filibuster was motivated in part by concerns about financial improprieties and in part by objections to Fortas’s close ties to Johnson (the two reasons commonly invoked by journalists), but also by false allegations made by Senator Strom Thurmond (and others) about Fortas’s roles in a set of rape and obscenity cases and by anti-Semitic objections to what would have been the nation’s first Jewish Chief Justice. Because of the timing of these developments, Republican Richard Nixon, elected in November 1968, gained the power to appoint Warren’s successor, and in 1969 the Democratic-led Senate confirmed Nixon’s nominee Warren Burger. Fortas resigned from the Court in 1969 and was replaced by Harry Blackmun, also nominated by Nixon.

Several years ago, Laura Kalman, the author of Abe Fortas: A Biography (Yale University Press, 1990), encouraged me to look into the allegations about Fortas’s homosexuality after she heard a paper I presented at the annual convention of the Organization of American Historians. Kalman’s book discusses several of the reasons that may have led Fortas to resign from the Court shortly after the filibuster against his appointment as Chief Justice proved successful. (A majority, but not the needed two-thirds, of the senators present voted for cloture, thus preventing what U.S. Senate Majority Leader Bill Frist has called an “up or down vote.”) Kalman writes (on page 375),

Other gossip was more startling. No one who knew of Fortas’s enthusiastic heterosexuality would ever have accused him of homosexuality, but [New York Times reporter Fred] Graham and [Life magazine reporter William] Lambert were told, presumably by sources within the government who offered to ‘bootleg’ the information ‘out of the FBI’, that the FBI had a morals file on Fortas that included allegations he had once been involved in a sexual relationship with a teenage boy. Regardless of their truth, such stories were damaging.

Kalman cites as documentation a conversation with Lambert in Graham’s papers at the Library of Congress.

Some years after Kalman’s biography was published, J. J. Maloney published a related article in the electronic Crime Magazine: An Encyclopedia of Crime. (The website identifies Maloney as a convicted murderer who served 13 years in prison and then became an award-winning journalist, receiving five Pulitzer Prize nominations, the American Bar Association’s Silver Gavel prize, and the American Society of Newspaper Publishers award for Best Investigative Story.) Maloney’s article consists for the most part of two documents purportedly obtained from the FBI (with various words and sentences blacked out). The first, dated July 20, 1967, discusses “an active and aggressive homosexual who has been an informant of the Washington Field Office” and who “over the years has provided a great deal of reliable information.” According to this document, the informant told a Washington Field Office agent that “he had ‘balled’ with Abe Fortas on several occasions prior to Mr. Fortas’ becoming a Justice of the United States Supreme Court.” The informant reportedly indicated that “to ‘ball’ is to have a homosexual relationship with another male.”

The second document, dated July 24, 1967, is a letter from the FBI’s Cartha DeLoach to the FBI’s Clyde Tolson. It reads, in part,

Pursuant to the Director’s instructions, I saw Justice Fortas at his home.... I told him we had received an allegation from a source of information reflecting participation in homosexual activities on his part. I stated that the Director wanted this matter discreetly and informally brought to his attention so that he would be aware of such an allegation. I mentioned that the FBI was taking no further action in connection with this matter and that the fact that the Director was making this available to him was strictly for his own personal protection and knowledge. Justice Fortas was handed the attached memorandum so that he could read it personally. After reading this memorandum, he told me that the charges were ridiculous and absolutely false. He stated he had never committed a homosexual act in his life and while he might be properly accused of normal sexual relations while a young man and during his married life, he most certainly had never committed homosexual acts at any time.... Justice Fortas expressed great appreciation for having been provided with the above facts. He asked that his thanks be extended to the Director for having handled the matter in this manner.

In 2003, Susan Braudy’s book Family Circle: The Boudins and the Aristocracy of the Left (Knopf) made a passing reference to the allegations about Fortas. According to Braudy (page 331), “In fact, Fortas resigned because of J. Edgar Hoover’s threat of blackmail: an FBI agent had visited Fortas in 1968 to inform him of Hoover’s ‘concern’ that Fortas had been seen at a homosexual bar. It was left to President Nixon to appoint Fortas’s successor as well as the chief justice. Thus did Hoover deliver a history-changing coup de grace to the liberal Supreme Court.”

Braudy cites the FBI’s file on Fortas, adding in her footnotes (page 431),

It would be many years before a hint of more complicated factors leading to Fortas’s resignation surfaced. According to a document from the FBI files, an FBI agent had visited Fortas and politely explained that on Director Hoover’s orders, he was alerting Fortas to the dismaying fact that an informant had seen Fortas at a homosexual club. Abe Fortas thanked his visitor and resigned from the Supreme Court.

I have written to Braudy via her publisher, but have not received a response.

In late 2004, I contacted the FBI to request an appointment to see the pertinent Fortas file during a planned research trip to Washington, D.C. I had determined that I was looking for O&C Files, Abe Fortas Folder 71, which was listed on the FBI’s website as available in the FBI’s public reading room. Having previously filed Freedom of Information Act requests and having previously worked with materials in the FBI’s public reading room, I expected that I would have to go to the reading room to see the file, but when I telephoned I was told that the file contained just six pages and these materials could be photocopied and sent to me. In February, however, I received a letter about my request signed by David Hardy, the section chief of the Record/Information Dissemination Section of the FBI’s Records Management Division. According to the letter, “Information which might relate to your FOIA request in our Reading Room is unavailable at this time. The original and blacked out copy are missing at this time. When this information becomes available, it will be provided to you.”

Shortly thereafter I called the FBI’s Records Management Division and spoke with a staff member named Debbie Beatty, who explained that the documents “existed at one time” but apparently had been “misplaced.” No further information was forthcoming, but I asked if I might send to the FBI a copy of the Crime Magazine materials so that the FBI might let me know whether or not they were (or appeared to be) authentic. Ms. Beatty agreed to see what she could do. On March 15, I received a second letter from Mr. Hardy, who wrote, “After a thorough search, we are unable to locate the files pertaining to Abe Fortas, therefore, we cannot confirm that the document is in fact an FBI document. From the appearance of the document, it is very similar to the way the FBI processes documents.”

What are the likely explanations for the recent FBI responses to my query? The consensus of the scholars I have consulted is that there are three possibilities. One is that the materials are missing because of administrative mistakes or administrative incompetence. A second is that the materials were stolen by someone who had access to them in the FBI reading room. A third is that the materials are being withheld as a result of a decision made by someone at the FBI, the Justice Department, the White House, or another government agency with authority over the documents.

If the primary documents discussed by Kalman, Maloney, and Braudy are authentic (by which I mean that they exist, not that they are necessarily accurate), what are the implications for historical interpretation? To begin with, it is important to acknowledge that while all of the documents refer to allegations about same-sex sexual conduct by Fortas, their claims differ in important respects. For instance, if the Maloney documents are the basis for the accounts given by Kalman’s and Braudy’s sources, the references in the latter to a “teenage boy,” a “homosexual bar,” and a “homosexual club” may have been elaborations or inventions, since they do not appear in the Maloney materials. The comment about a “teenage boy” is particularly inflammatory, and here it is important to note that the phrase could refer as readily to a 19- year-old as it could to a 13-year old, and the allegation does not indicate Fortas’s age when this incident occurred. More generally, this episode may have much to teach us about the history of sexual gossip, rumor, shame, and pride, all of which have emerged as topics of significant interest to the public and the profession.

Whether or not the allegations about Fortas were true (by which I mean that they provided truthful accounts of Fortas’s sexual conduct), they will likely be of interest to historians of sexual behavior, sexual identity, and the relationship between the two. They also have the potential for influencing our understanding of national politics and sexual politics during this period, and especially the history of the FBI, the Senate, and the White House during the Johnson and Nixon administrations. As for the history of the Supreme Court, Fortas played an important role in several sex-related rulings in the 1960s, and we may want to understand the rulings and the allegations in relation to one another. In 1966 Fortas voted with narrow majorities in three obscenity rulings (Fanny Hill, Ginzburg, and Mishkin). In Ginzburg and Mishkin (which dealt in part with materials produced for the gay market), the Court upheld obscenity convictions, though Fortas later expressed regret about his votes. Then in 1967 Fortas was one of three dissenters in one of the Court’s first gay rights cases, Boutilier v. the INS, which upheld the deportation of a Canadian “homosexual” on the grounds that under U.S. immigration law homosexuals were excludable and deportable because they were “afflicted with psychopathic personality.” In the oral arguments on Boutilier, Fortas aggressively questioned the government lawyer on the INS claim that homosexuality was intrinsically psychopathological. Two months after the Court announced its ruling in Boutilier, the FBI’s DeLoach reportedly visited Fortas (if the Maloney documents are to be believed). Did Fortas’s sexual history influence his votes? Can the same be said of the other justices, many of whom extolled the virtues of family, heterosexuality, marriage, and procreation in decisions about birth control, obscenity, and interracial marriage in this period? Did Fortas’s votes in these and other cases lead to the FBI’s visit and to the FBI’s implied threats?

If authentic, these documents may also influence our understanding of Johnson’s failed nomination of Fortas as Chief Justice, Fortas’s subsequent resignation, and the role that the FBI and the Senate played in both. The failed nomination and the resignation, in turn, are linked to the subsequent history of the Supreme Court, which ended up with William Burger as Chief Justice and Harry Blackmun as Associate Justice.

In any event, it is unfortunate that the public’s right to know about a relevant episode in the history of the U.S. Supreme Court is blocked at a moment when the president of the United States will be nominating a new Associate Justice, and possibly a new Chief Justice, and when the U.S. Senate will be advising the president on the nomination and deciding whether to consent.