May 2003

The Douglas-Fortas Connection

by John N. Rupp

The minor historical event which I am about to relate occurred one summer. I am quite sure it was summer because one of the actors was Mr. Justice William O. Douglas of the Supreme Court of the United States, and Douglas used to spend the time of the Court's summer recess at his home in Goose Prairie in Yakima County, Washington. I am not sure of the year, although I think it was either 1971 or 1972. I know it was after 1969 because another actor was Abe Fortas, acting as a private attorney, and Fortas was a member of the Supreme Court until he resigned in 1969; and I know it was prior to 1973 because the incident involved the war in Vietnam, and this country withdrew from Vietnam in 1973.
 
Anyway, here is what happened.
 
Someone of the many individuals, groups and organizations opposed to our involvement in Vietnam petitioned the Supreme Court to declare the war illegal and unconstitutional and to enjoin the president from continuing it. The Court was in its summer recess, but somehow the petition was referred to Douglas. I assume that most judges would have simply denied such a petition, but Douglas decided to pursue it and to hold hearings on it. So he came down from Goose Prairie and held a several-day hearing in a Yakima courtroom. Naturally, the hearing received considerable attention from the press. Douglas announced that he would promptly write and file an opinion. I assume he planned to grant the petition.
 
After he figured out what he wanted to write, he telephoned his office in Washington, D.C., and dictated his opinion to his clerks there. Within a day or so, and before the opinion was released, Chief Justice Burger convened the Court in special session, and the Court voted to deny the petition.
 
I'm guessing, but my guess is that Douglas's plan was to have his opinion given to the press before the Court could be convened and that there would be headlines such as "Douglas Enjoins Vietnam War." But the prompt action of the chief justice and the Court spoiled all that. How did Burger find out so soon, thus enabling the Court to finesse Douglas? Naturally, Douglas thought there had been a "leak" somewhere, and he employed his friend Abe Fortas to be his lawyer to find out what happened.
 
All I knew about the Court's opinion was what I had read in the newspapers, and the press coverage was fairly routine. It is hardly big news when the Supreme Court refuses to enjoin the president in a foreign-policy matter, or to entertain any of the hundreds of similarly goofy petitions which, one assumes, the Court receives every year.
 
Suddenly, however, the matter became important to the Pacific Northwest Bell Telephone Company. I was informed that Abe Fortas had telephoned PNB's Yakima manager and had flatly accused the company of having leaked to someone in Washington, D.C., the substance of Douglas' opinion. The startled manager had told Fortas that he would ascertain the facts and report to him as soon as that was done. I phoned the manager and told him not to do so. I said that, if anyone was to talk to Fortas, it should be Rupp as the company's general counsel. This was a considerable relief to the manager because (a) he was not keen on getting into the middle of a high-level scrap and (b) Fortas had been quite high-handed and rude in talking to him.
 
So the manager gave me the facts of the matter, and I telephoned Fortas in New York or Washington. I introduced myself and then told him that under the Communications Act, I could discuss Douglas's phone calls only with Douglas or his attorney. He took umbrage at that and said, if I didn't believe him, he'd get a letter from Douglas. I told him there was no need for that formality and that, if he'd just tell me that he was Douglas's attorney, that would be sufficient. I thought that I was being quite courteous, but Fortas seemed to think I was impugning his honor. Anyway he said he was indeed Douglas's attorney in the matter, and I gave him the facts as follows:
 
Douglas did not have a telephone at Goose Prairie, so he made his phone calls from a public telephone at "Whistlin' Jack," a small resort on the Naches River by the side of the Chinook Pass Highway (A "Whistlin' Jack" is a hoary marmot. They make a sharp whistling call). PNB did not serve that area, and the telephone was the property of the Naches Telephone Company. Long-distance calls from it went into Yakima and were handled by the PNB operators there. The telephone was in an open booth outside of Whistlin' Jack, and the wires from it out to the telephone cable on the highway went right past the windows in one of the resort cabins. Anyone could stand outside the booth and hear everything Douglas said, and a sleuth who wanted to tap the wires could simply reach out the cabin window and put a couple of clips on the two wires. Since that was Naches Telephone Company territory, PNB had no control over it, but we checked at Whistlin' Jack and had been informed that no one there had seen any such eavesdropping or wiretapping, either then or any other time. Still, it was evident that such a telephone was hardly the thing for a man to use if he were seriously concerned with privacy.
 
When the call came into the Yakima office it would be handled by a PNB operator who would take directions from Douglas and put the call through on the Bell System long-distance lines to Washington, D.C. "Ah," said Fortas, "that operator could listen to the call." I replied that of course it was possible, but such conduct was a major sin in the telephone business, and operators don't do it and anyway they're too busy to spend time that way. "Yes, I know," he said, "but Bill Douglas says there was something fishy about that call. He told me that the person he talked to was not an operator. It was a man!"
 
I thought it was a bit ironical for Douglas and Fortas, of all people, not to realize that there were no longer "women's jobs" and "men's jobs" in industry, but I contented myself with pointing out that we had three male telephone operators at Yakima. I added that one of them was blind. That seemed to surprise Mr. Fortas, and I sensed he was backing off a little from his earlier challenging attitude.
 
Then I told him, "You know, I think you're looking at the wrong end of the line. Bill Douglas was brought up in Yakima Country, and the people there take him for granted. They don't pay much attention to him. And when he comes into town from his ranch he looks like any other farmer. I think he likes it that way. And I don't think those Yakima folks are much interested in what he might try to do about Vietnam. Don't you think that, if there was a leak, it was in Washington, D.C.? I gather that leaks are a way of life there." After a little more conversation we agreed that, if either of us learned any more facts bearing on PNB's involvement, we would be back in touch. I learned nothing more and I assume that he didn't either because we had no further contact. Nor did I ever read or hear anything about whether there had been a leak or whether Fortas had found out where it was. There could well have been one, but maybe not. Burger knew Douglas and probably could have figured out what Douglas planned to do without benefit of leak.
 
So that ended the incident, and we went back to what Archbishop Cranmer in The Book of Common Prayer called our "lawful occasions." I'm not sure whether ever Fortas actually understood that our operators and the other people in Yakima really didn't give much of a damn about Bill Douglas and his hearing on Vietnam. People in and around the government in Washington, D.C., tend to think that nothing of importance occurs west of the Potomac and Hudson rivers, and that the rest of the country waits with bated breath to find out the news from Washington and New York. Perhaps Fortas really did think that Yakima County was teeming with wire-tapping spies (armed with alligator clips) and eavesdropping telephone operators, all just dying to learn of Justice Douglas's opinion so they could phone the chief justice and tell him about it.
 
I wonder if Abe Fortas ever saw a Whistlin' Jack.

Founding editor of Bar News, John Rupp was a member of the Board of Governors and president of the Washington State Bar Association. Famed as a raconteur and writer, Rupp contributed this story —  one of many — to Bar News in July 1993.

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