Abe Fortas and Juvenile Justice: The Revolution Secured in In re Gault

In In re Gault (1967), the Supreme Court held that juveniles in delinquency adjudications are entitled to certain due process protections. This marked a critical change in the development of American juvenile justice. In decades prior, the philosophy guiding this system (which was distinct from its adult criminal counterpart) advanced the perspective that separate, informal procedures enhanced young people’s treatment and led to rehabilitation according to individualized need. However, cases such as Gerald Gault’s made it evident to many this system had failed. Absent due process protections, juveniles were vulnerable to the whims of state prosecutors and local judges. Retributive aims had undermined the purported goal of rehabilitation. The state acted, not as a guardian of children’s interests, but as a thief of their rights.

Abe Fortas, as a new Supreme Court justice, articulated this sentiment in his majority opinion in Gault. This thesis argues that, as a legal realist and ardent supporter of the rights of defendants vis a vis the state, Fortas was individually inclined to protect vulnerable juveniles facing the courts, a sentiment evident in the text of his opinion. This predisposition was a product of the liberal, pro-defendant, anti-Communist cultural context in which Fortas was educated, worked, and lived. Fortas’s opinion in Gault—contemporaneously called the “Magna Carta” for juveniles and, retrospectively, the “Bill of Rights” for young defendants—provides a window into Abe Fortas as an individual intellectual and, more broadly, the 1960s cultural war that surrounded him. Fortas secured a juvenile justice revolution in In re Gault. Recovering this history allows us to ask the question, though: Was this the revolution we should have wanted?