The Volokh Conspiracy
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Charles Fried's Hat and Sweater
Fried and Meese offer very different conceptions of legal conservatism.
Charles Fried is a law professor at Harvard, and served in several positions in the Reagan Administration, including as Solicitor General. During the debates over the Affordable Care Act, Fried made national headlines. He promised that if the Supreme Court invalidated Obamacare, he would eat his "kangaroo skin hat." In Unprecedented, I noted that Fried actually found a chef who would bake a cake in the shape of his hat, just in case. Alas, due to the Chief Justice's saving construction, Fried would never have to eat his hat. Now Fried is making another sartorial appeal to the Chief Justice.
Today, Fried published a guest essay in the New York Times titled "I Once Urged the Supreme Court to Overturn Roe. I've Changed My Mind." Generally, authors do not get to pick their headlines. So it is difficult to determine whether Fried adopted this headline. Moreover, it isn't clear what exactly he changed his mind about.
In Webster v. Reproductive Health Services, Fried argued that the Court should overrule Roe. At the time, he "did not see how the Constitution provides a principled basis for answering the question" of how to balance the "liberties of the pregnant woman" and "the life of another person, the fetus." Fried adds that he was "personally agnostic on that issue." I'll admit, I don't know many legal conservatives who are "personally agnostic" on abortion. Fried, who clerked for Justice Harlan when Poe v. Ullman was decided, also said that Harlan's dissent provided "foundation of the law of privacy and personal dignity." Again, I don't know many legal conservatives who take the concept of "personal dignity" as a valid constitutional doctrine. (I am forever grateful I will never have to read another Anthony Kennedy decision extolling "dignity.").
But something changed for Fried between 1989 and 1992. He 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, I do not know many legal conservative who thinks that Casey put Roe on a firmer constitutional basis. Dignity and autonomy are made-up constitutional values, just like emanations and penumbras. And Casey did not embrace the equal protection argument that Justice Ginsburg and others have advanced over the years. Instead, Casey adopted a method of stare decisis that was overtly political, and requires looking to public perception to decide the contours of constitutional law. Dissents from Chief Justice Rehnquist and Justice Scalia spell these arguments out in detail. I take it Fried disagrees with these two dissents, and stands with Souter.
Fried continues that Casey has formed the structure for other Supreme Court decisions, such as Lawrence v. Texas and Obergefell v. Hodges. (Both of those cases were 5-4, with the conservatives in sharp dissent). He writes that Casey "not only taken root; it has flourished and ramified." Fried concludes that "[t]o overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary."
I disagree. The original act of constitutional vandalism was 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. The Casey plurality was an attempt to coverup to that vandalism–perhaps call them co-conspirators to the constitutional vandalism. Doubling down on that distortion in Dobbs would perpetuate those errors. Overruling Roe and Casey would be responsible, not reactionary. Stare decisis cannot mean "let the decisions of the Warren Court stand."
Fried closes with another constitutional metaphor based on clothes, directed right at the Chief Justice:
When I argued Webster and made the case that overturning Roe would not undermine the broader foundation of privacy, I learned a lesson in the use of metaphor. Seeking to invoke my mentor John Harlan, I said I was not urging the unraveling of the whole fabric of substantive due process and unenumerated rights, but only to pull this one thread. To which my opponent replied that in his experience every time he pulled a thread on his sweater, the sleeve fell off.
In Webster, Fried offered these opening remarks:
Thank you Mr. Chief Justice and may it please the court. Today the United States asks this court to reconsider and overrule its decision in Roe v. Wade. At the outset, I would like to make quite clear how limited that submission is. First, we are not asking the Court to unravel the fabric of unenumerated and privacy rights which this court has woven in cases like Meyer and Pierce and Moore and Griswold. Rather, we are asking the Court to pull this one thread.
His opposing counsel, Frank Susman, offered this rejoinder:
Mr. Chief Justice, and may it please the court, I think the Solicitor General's submission is somewhat disingenuous when he suggests to this court that he does not seek to unravel the whole cloth of procreational rights, but merely to pull a thread. It has always been my personal experience that when I pull a thread, my sleeve falls off. There is no stopping. It is not a thread he is after. It is the full range of procreational rights and choices that constitute the fundamental right that has been recognized by this court. For better or for worse, there no longer exists any bright line between the fundamental right that was established in Griswold and the fundamental right of abortion that was established in Roe.
Fried may still be smarting, three decades later, from being called "disingenuous."
But the admonition is wrong. In light of the Glucksberg framework, Meyer and Pierce are safe. The rights of parents to direct the upbringing of their children are deeply rooted in our nation's history and traditions. Moreover, I recently asked several social conservatives what they would think if Meyer and Pierce were jettisoned along with Roe. The answer was overwhelmingly positive. Indeed, today those cases are largely recast as First Amendment cases, so they have little separate value as 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.