Charles Fried was a Harvard Law Professor and held several senior positions during the Reagan Administration including Solicitor General. Fried was a national sensation during the Affordable Care Act debates. Fried promised to eat “his kangaroo skin” hat if Obamacare was invalidated by the Supreme Court. In UnprecedentedFried did find a baker who could make a cake that resembled his hat. Fried wouldn’t have to wear his hat because of the saving construction by Chief Justice. Fried has made a second appeal to Chief Justice for sartorial advice.
Fried has published today’s guest essay in New York Times Titled “I once urged the Supreme Court for Roe to be overturned.” This is how I have changed my mind. Authors are not allowed to select their headlines. It is therefore difficult to know if Fried used this headline. It is also unclear what he was thinking about.
Webster v. Reproductive Health ServicesFried claimed that the Court should decide Roe. At that time, Fried “didn’t see how the Constitution provided a principled base for answering the question” about how to balance “the liberties of a pregnant woman” and the “life of another person,” the fetus. Fried also stated that Fried was not “personally agnostic” on the issue. It’s true, I do not know any legal conservatives who are “personally atheist” about abortion. Fried was a clerk for Justice Harlan. Poe v. Ullman Was ruled, and Harlan’s dissent was deemed to be the “foundation” of the law regarding privacy or personal dignity. Again, it is rare to find legal conservatives that accept the notion of “personal dignity”, as an actual constitutional doctrine. (I will be forever grateful that I won’t have to see another Anthony Kennedy ruling extolling dignity.”).
Fried’s life changed between 1989-1992. Fried writes:
In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, a joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter reaffirmed the central holding of Roe and put it on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.
Again, it is not something I know of any legal conservatives who believe that. CaseyPlace RoeA solider constitutional foundation. As with emanations and penumbras in the constitution, autonomy and dignity are constructed constitutional values. Also Casey Justice Ginsburg, as well as others over the years, had advanced the equality protection argument. Casey did not accept it. Casey instead chose a stare decisis method that is overtly political and relies on public perception to determine the contours for constitutional law. These arguments are detailed in the dissents of Chief Justice Rehnquist, Justice Scalia. Fried is a dissenter to these two opinions, so I stand with Souter.
Fried says that Fried will continue to say so Caseyhe has created the framework for Supreme Court decisions such as Lawrence v. Texas Obergefell v. Hodges. Both cases had a 5-4 vote, and the conservatives were in strong dissent. He wrote that Casey It has “not just taken root, it has thrived and been ramified.” Fried concluded that Fried was right to conclude, “[t]o overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.”
I disagree. It was constitutional vandalism in its original form. Roe. To extend the metaphor, the Warren and Burger Courts were career criminals–arsonists, really–slashing and burning entire swaths of the Constitution to advance their ideal of a just society. You can read the entire article here. Casey Plurality was an attempt at covering up that vandalism – perhaps you could call them coconspirators of the constitutional vandalism. Double down on this distortion Dobbs They would continue to make these errors. Overruling Roe CaseyWould be proactive, not reactive. Stare decisis does not mean, “Let the Warren Court’s decisions stand!”
Fried ends with a second metaphor about constitutionality based on clothing, directed at Chief Justice.
Webster was my argument. I made the case for Roe not being overturned. I also learned the value of metaphors. Invoking John Harlan as my mentor, I stated that I wasn’t urging the destruction of all substantive due process rights. I wanted to just pull one thread. My opponent responded that his personal experience was that any time he pulled a thread from his sweater the sleeve would fall off.
Fried made these opening remarks at Webster:
We are grateful to Mr. Chief Justice. May it be a blessing for the court. The United States requests that this court reconsider its Roe v. Wade decision and overrule it. Let me be clear from the beginning. The Court is not asked to untangle the net of privacy rights and unenumerated that this court has woven with Meyer, Pierce, Moore, and Griswold. We are asking for the Court instead to remove this thread.
Frank Susman (his opposing counsel) offered the following rejoinder.
Monsieur Chief Justice, may the court accept the submission of the SolicitorGeneral. disingenuousWhen he suggested to the court that he doesn’t seek to unravel all of procreational rights but only to take a single thread, My personal experience has been that if I pull a string, it is like pulling a straw. It is impossible to stop. He isn’t after a single thread. This court has recognized the entire range of procreational choices and rights as the fundamental right. There is no clear line anymore between the fundamental rights established in Griswold, and Roe’s fundamental right to abortion.
Fried is still smarting three decades after being called “disingenuous,”
However, the advice is incorrect. This is in light of Glucksberg framework, Meyer Pierce You are protected. In our country’s rich history and tradition, parents have the right to make decisions about their children’s upbringing. I also asked social conservatives their thoughts if they were allowed to direct the education of their children. Meyer And Pierce They were thrown out with Roe. It was overwhelming positive. In fact, these cases were largely recast today as First Amendment cases so that they don’t have any separate value in substantive due-process decisions.
Ultimately, I think Attorney General Meese offers a far more representative account of how legal conservatives–especially those from the Reagan Revolution–view Dobbs.