Supreme Court Chief Justice John Roberts on Tuesday declined an invitation before the Senate Judiciary Committee about Justice Clarence Thomas’s financial entanglements with conservative billionaire Harlan Crow, while new reporting revealed that Justice Gorsuch sold his home to a chief executive at a leading law firm. On this week’s episode of Now & Then, “Supreme Court Scandals: A Story of Justice,” Heather Cox Richardson and Joanne Freeman explored the history of conflicts-of-interest involving Supreme Court Justices, from Samuel Chase’s 1805 impeachment for Federalist biases, to Stephen J. Field’s 1880s support of railroad barons, to Abe Fortas’s 1969 resignation for a consulting arrangement with a felonious financier. At the end of the 1970s, allegations about powerful attorney Thomas G. Corcoran’s improper interactions with two Supreme Court Justices ignited a dramatic controversy over legal ethics. 

In December 1979, Washington Post reporter Bob Woodward was preparing to release The Brethren, his long-awaited first book after his acclaimed series on Watergate. Woodward’s new project, written with his colleague Scott Armstrong, was an inside look at the Supreme Court under conservative Chief Justice Warren Burger, who took over from the retiring liberal icon Earl Warren in 1969. 

Woodward and Armstrong’s publisher, Simon & Schuster, offered a dramatic rollout for the book, with meaty excerpts in newspapers across the country. One story from this publicity blitz, published on December 3rd, 1979, got particular play. Woodward and Armstrong revealed that in the Fall of 1969, a decade earlier, a powerful Washington lawyer named Thomas G. “Tommy the Cork” Corcoran had visited two Supreme Court Justices, Hugo Black and William Brennan, in their chambers to discuss a pending case – an almost-unheard-of breach of Supreme Court ethics. 

If anyone was going to have the gall to attempt to influence Supreme Court justices off-the-record, it was Corcoran. The lawyer, in his late sixties in 1969, had the ultimate insider CV. He clerked for Supreme Court Justice Oliver Wendell Holmes as a young man in the 1920s, before becoming one of President Franklin Delano Roosevelt’s most trusted legal wizards behind his New Deal policies. An expert drafter of legislation, he played a central – and often obscured – role in authoring laws like the 1934 Act, which created the Securities and Exchange Commission, and the Fair Labor Standards Act of 1938, which enacted the federal minimum wage. 

Corcoran also quickly gained a reputation as an aggressive enforcer. He was a driving force behind  Roosevelt’s much-maligned attempt to enlarge the Supreme Court in 1938, and he contributed the same year to FDR’s attempts to sabotage the re-election campaigns of disloyal Democratic legislators. 

When Corcoran went into private practice after World War II, he used the same hardball strategies to lobby for his clients’ companies, many of which were in the natural gas industry. In early 1952, for example, he popped up in a LIFE magazine article for subtly leaning on congressional contacts to help his client, Houston-based gas executive Gardiner Symonds, to get a piece of the first-ever Northeastern natural gas pipeline. Instead of asking legislators to openly support Symonds’s bid, he simply asked them to show their support generally for natural gas before the regulatory Federal Power Commission (FPC). Corcoran, confident that Symonds had the best bid, thus greased the FPC’s wheels without appearing to overtly meddle. 

Yet sometimes Corcoran’s manipulations veered into more intense cajolery. In 1959, Corcoran orchestrated off-the-record talks with three of the four FPC commissioners, encouraging the officials to approve another Symonds-backed pipeline. 

The unsanctioned conversations got Corcoran subpoenaed by the House Special Subcommittee on Oversight, where his defiant testimony was front-page news in May 1960. “I had a perfect right to talk about it,” Corcoran said of his discussions about the case with the FPC commissioners. He ultimately faced no punishment for the questionable communications. 

But in late 1969 – at least according to Woodward and Armstrong – Corcoran had taken things to another level. Corcoran allegedly came to the Court to discuss El Paso Natural Gas Company, the world’s largest pipeline concern. During the previous term, the Supreme Court had ruled that El Paso had to divest its holdings in Western states. The ruling was a climax in a sprawling, 12-year antitrust case concerning the company. 

El Paso had filed a rehearing petition in an attempt to get the Court to reopen the case. Corcoran decided to visit Justices Black and Brennan to push for the petition. 

Black had been a Democratic Alabama Senator during the New Deal, and he and Corcoran had worked closely on getting FDR’s bills through Congress. Moreover, Corcoran’s daughter Margaret had recently served as a clerk for Black. The Justice cut Corcoran off as soon as the lawyer started to talk about the case. “In his 32 years on the court, Black had never had the arm put on him so overtly, in his own chambers by a lawyer for a private party involved in a dispute before the court,” Woodward and Armstrong wrote of the encounter. 

After striking out with Black, Corcoran visited Justice Brennan, who he did not know nearly as well as Black. Corcoran explained that, although he was not El Paso’s counsel, he had been driven to intervene by a deathbed statement by one of El Paso’s attorneys that the Court’s holding had been a “grave injustice.” 

Brennan also shooed Corcoran out, but he began to think that the ruling against El Paso had indeed been a mistake. He felt that the Court had been too eager to put the case to bed, and had agreed to a legally-dubious divestiture compromise. The new chief Justice, Warren Burger, who was generally pro-business, also felt that the El Paso case might deserve a fresh hearing. 

Per Woodward and Armstrong, Brennan opted to share his Corcoran interactions with the rest of the Court. After hearing about Corcoran’s pressure, the liberal Justice William O. Douglas argued that the untoward conversations made any reconsideration of the Court’s decision dangerous. “If the court granted a rehearing, Tommy Corcoran would be all over town bragging about how he had stopped by Bill Brennan’s office and had twisted his arm – and, in turn, how Bill Brennan had bamboozled the rest of the court,” Woodward and Armstrong reported Douglas as saying. 

Douglas ultimately decided to write a confrontational internal memo portraying Burger as a “radical interventionist” who wanted to carry water for corporate interests like El Paso. Douglas’s gambit worked; the Court refused to rehear the case. 

The story of Corcoran’s conversations with Black and Brennan and the subsequent maneuvering around the El Paso case remained totally hidden until December 1979, when the excerpts from The Brethren hit the headlines. In the interim, Justice Black had died, while Justice Brennan remained on the Court. 

Corcoran had maintained a high-profile client base during the 1970s. He also stoked renewed tensions with a longtime enemy, mercurial Navy Admiral Hyman Rickover, the septuagenarian “Father of the Nuclear Submarine.” In the mid-1970s, Corcoran, representing ship-building companies, had pushed for Rickover’s retirement. 

Upon reading the excerpts on Corcoran’s supposed shenanigans, Rickover decided to exact revenge. Rickover was not an attorney, nor did he have any direct relationship to the El Paso case, but he nonetheless wrote to the American Bar Association’s Washington D.C. Ethics Chair two days after the Corcoran excerpts ran. 

“As you know, large segments of the public lack confidence in the legal profession and question whether the profession lives up to its obligations for setting and enforcing standards of ethical conduct by its members,” Rickover dramatically opened his letter. “My experience to date tends to correlate this lack of confidence and skepticism.”

Rickover then recounted the details of Corcoran’s meetings with Black and Brennan and asked the D.C. Bar to investigate and, if confirmed, to discipline the lawyer. 

Rickover’s letter was forwarded to the ABA’s president, Leonard Janofsky, who offered a somber response to the Admiral: “Be assured that the District of Columbia Bar is investigating Mr. Corcoran’s alleged conduct.” 

The investigation into Corcoran was soon public knowledge. On December 21st, 1979, a front-page Washington Post headline read “Attorney Corcoran Faces Ethics Probe.” The article quoted Janofsky as saying that the allegations against Corcoran, if found to be true, amounted to “a very, very serious violation of the canon of ethics.” Corcoran was facing a real threat of disbarment. 

Corcoran lawyered up, hiring rising star Robert S. Bennett – one of his protégés and later President Clinton’s personal lawyer during the Lewinsky scandal – to defend him. Corcoran denied the charges out of hand. “Bob, I need a street fighter on this,” Corcoran told his young charge, per Bennett’s memoir In the Ring: The Trials of a Washington Lawyer. “Will you help me?” 

Bennett took the case. He reached out to Justice Brennan – yet another septuagenarian by this juncture – in January 1980 to ask whether the Justice had any recollection of an untoward El Paso-related conversation with Corcoran back in 1969. The ABA asked the same set of questions. Brennan responded to the ABA inquiry, acknowledging that he had met Corcoran during the period in question, but writing, “I am afraid I no longer have any independent recollection of the incident.” 

Given Corcoran’s denial and Brennan’s fogginess, the ABA dropped its inquiry in March 1980. Bennett’s reaction to the dismissal reflected the culture of favors in Washington legal life that had arguably led to the scandal in the first place: “I was delighted that I could finally do something for a man who had done so much for me.” 

The matter effectively ended there. Corcoran died a year and a half later, and the veracity of Woodward and Armstrong’s reportage remains a mystery. Justice Potter Stewart, the source for much of The Brethren, died in 1985, as have all the other Justices who could have heard first-hand about Corcoran’s behavior. As the questions continue to mount about the ethical actions of Justices Thomas and Gorsuch, however, the unresolved questions of Corcoran’s seeming improprieties are all the more important. 

For more on “Tommy the Cork” and the D.C. legal climate of the late 1960s, read Joseph C. Goulden’s 1972 The Superlawyers: The Small and Powerful World of the Great Washington Law Firms. 

And head to the Twitter account of Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.

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