Charles Fried

When the Supreme Court hears a major election-law case next week, the Justice Department will argue that nothing prevents Ohio from canceling the voter registration of citizens who don’t confirm their eligibility after not voting for two years...It’s not unusual for the department to adjust some legal positions under a new administration. But legal analysts say the shifts since President Donald Trump took office have been particularly numerous and pronounced. “Every administration does, and certainly in my time we did do, the occasional U-turn—but with great reluctance,” said Harvard law professor Charles Fried, who, as solicitor general under President Ronald Reagan represented the government before the Supreme Court and in select lower-court litigation.

By reversing the federal government’s long-held position that “fair share” fees paid to public employee unions by nonmembers are lawful, the U.S. Justice Department sent an early holiday present to Justice Samuel Alito Jr., who has led recent attacks on the constitutionality of the fees. But maybe, in a long shot for unions, the late Justice Antonin Scalia will have the final word. Noel Francisco, the U.S. solicitor general, on Wednesday filed a friend-of-the-court brief that urged the justices to overrule a 40-year-old decision, Abood v. Detroit Board of Education. That decision rejected claims that the fees, paid to cover nonunion members’ share of the costs of collective bargaining, violated the First Amendment...That opinion now is at the center of an amicus brief in the Janus case. The amicus parties, Reagan administration Solicitor General Charles Fried of Harvard Law School and Yale Law’s Robert Post, submitted their brief in support of neither side.

A letter to the editor by Charles Fried. Re “Top Court Puts Gerrymandering on Unclear Path” (front page, Oct. 4): At oral argument, the supremely intelligent chief justice said that proving and remedying gerrymandering might require the judiciary to parse “sociological gobbledygook.” Sorry, but that’s no excuse for not doing your job and saving our democracy. Every day, federal judges must pass on exquisitely intricate arguments in patent cases and on the admissibility of expert testimony in a wide variety of technical fields. Indeed, the social science here is not that difficult. An outside lecturer came to my grandson’s high school and explained it to the complete comprehension of a class of bright 15-year-olds.

Harvard Law School unveiled a plaque during a ceremony this week to acknowledge the work of unnamed slaves whose labor made the law school’s founding possible, the university said in a statement. The plaque, located on a rock in the center of Harvard Law School’s plaza, is the latest in a series of steps by Harvard University and Harvard Law School to acknowledge the role of slavery in the school’s history...Harvard Law professor Charles Fried said the plaque, which was unveiled Tuesday, is an appropriate way for the school to recognize the negative parts of its history while also maintaining pride in its accomplishments. “You have to acknowledge the wrongs and the evils which are hundreds of years old and not ignore them, but on the other hand, not act as if they have taken place last week or even 20 years ago,” he told the Globe in a phone interview Friday morning.

Breaking ranks with many of their fellow Republicans, a group of prominent politicians filed briefs on Tuesday urging the Supreme Court to rule that extreme political gerrymandering — the drawing of voting districts to give lopsided advantages to the party in power — violates the Constitution...Charles Fried, a Harvard law professor who served as United States solicitor general under President Ronald Reagan, and who is among the lawyers representing Republican politicians urging the Supreme Court to reject extreme political gerrymanders, said it was important to take the long view and to act on principle. “It’s not a partisan issue,” he said. “We are working for our republic, and not for Republicans.”

President Trump spent 18 months as the ultimate law-and-order candidate, promising to rescue an American way of life he said was threatened by terrorists, illegal immigrants and inner-city criminals. But during seven months as president, many critics and legal scholars say, Mr. Trump has shown a flexible view on the issue, one that favors the police and his own allies over strict application of the rule of law...“I don’t think you have to be a champion of it; all you need to do is comply with it,” said Charles Fried, a Harvard Law School professor who was a solicitor general under President Ronald Reagan. “And he shows himself absolutely unwilling to respect it,” Mr. Fried said, citing the pardon as a particular thumb in the eye of a judge.

An op-ed by Charles Fried. Last month, the Supreme Court agreed to hear arguments in Gill v. Whitford, a case in which Wisconsin seeks to overturn a decision of a lower court holding that the state assembly district map is an unconstitutional partisan gerrymander. Wisconsin’s effort should fail. The lower court got it right. Although Democratic and Republican voters in Wisconsin are about evenly divided, the state legislative districts are so manipulated that Republicans gained 60 percent of the seats in the assembly, despite receiving less than 49 percent of the statewide vote in 2012 — a result that has remained largely unchanged in subsequent elections. And it is that gerrymandered assembly that Wisconsin wants to keep in office so it can draw a new map for itself and for the state’s members of Congress in 2021.

Drew Gilpin Faust, a Civil War historian who announced plans Wednesday to step down as president of Harvard University, has pushed the institution over the past decade to face its own complicated history, presiding over an era in which the elite university’s wealth and traditions ­— long its greatest assets — became rich targets for critics of inequality...Apart from building buildings, some professors argue that Ms. Faust helped to build an unwieldy bureaucracy at Harvard — one that may impede faculty input in university governance. "We just have buildings full of provosts, assistant provosts, deputy assistant provosts, associate provosts, presidents, vice presidents, assistant vice presidents," said Charles Fried, a professor in Harvard’s law school. "It’s just an enormous bureaucracy, which quite recently never existed. And that’s because those functions were performed mainly within the faculty."

During his blockbuster testimony Thursday, former FBI Director James Comey made several remarkable claims before the Senate Intelligence Committee: that President Trump directed him to drop his investigation into Trump's former national security adviser, Michael Flynn, and that the president fired Comey in an attempt to alter the course of the FBI's Russia investigation..."There's not going to be an impeachment at this point, in this Congress, unless fellow Republicans get really sick of him and there's no sign that that's happening," Charles Fried, a law professor at Harvard and former solicitor general under President Ronald Reagan, told Business Insider.

Donald Trump should be on a major hiring binge right now. His government is uniquely underpopulated, with only 123 out of 558 key positions requiring Senate confirmation either nominated or confirmed. Some departments are almost entirely vacant of political appointees below the cabinet-level positions...At this point, the question may be, who would take any of those jobs? Talking to people who’ve held them in the past, the answer seems to be: just about nobody...In other Justice positions, there’s the challenge of having to defend in court a president who seems bent on tweeting away his own defense. “I would’ve thought until just recently that one would be willing to take the job of solicitor general even in a Trump administration,” said Charles Fried, Ronald Reagan’s solicitor general.

An op-ed by Charles Fried. In its opinion of May 25 enjoining enforcement of the revised Trump administration travel a majority of the judges of the Fourth Circuit Court of Appeals latched on to two key words of a phrase in U.S. Supreme Court decisions from 1972 and 2015: In judging denials of entry of aliens into the United States the Supreme Court said judges may not “look behind ... the facially legitimate and bona fide” exercise of executive discretion. The Fourth Circuit judges mined a rich trove of explicit statements by Donald Trump as candidate and later as president-elect, and found that the travel ban was not issued in “good faith” because, while “speak[ing] vague[ly] of national security ... in context his [words] drip with religious intolerance.”

The Senate Intelligence Committee’s subpoena of Michael Flynn’s private documents sets up a potential battle between the legislative and executive branches over whether the Justice Department will enforce Congress’s will. The Justice Department is charged with enforcing congressional subpoenas. But it is led by Attorney General Jeff Sessions, and the Flynn subpoenas are related to investigations of Russia’s involvement in last year’s election, a sore spot for President Trump...Charles Fried, a professor at Harvard Law School and a former solicitor general of the United States, says that practically speaking the Congress doesn’t have much recourse if the Justice Department refuses to enforce a contempt citation. “They can declare various officials in contempt," Fried noted but ultimately “Congress has no power of prosecution.”

A former US solicitor general said this week that what will be key to whether President Donald Trump is victorious defending his immigration moratorium in the court system is whether the executive order is interpreted solely based on the text of the document. Charles Fried, who served as solicitor general under President Ronald Reagan and is now a Harvard law professor, told Business Insider that things may not bode well for Trump if the court decides to consider statements he made along the campaign trail about banning Muslims from entering the country. "What shadows any such effort is the question whether these executive orders have to be interpreted within the four corners (purely on the text of the documents) ... or whether various statements — including statements by candidates, including statements by advisers, including 3 a.m. tweets — whether those bare on the constitutionality in the sense that they are considered competent evidence of the intent of the order," Fried said.

An op-ed by Charles Fried. Back when Elizabeth Warren was inveighing against sleazy mortgage brokers who were selling mortgages with low rates to unqualified home buyers — mortgages that would balloon to the unaffordable long after the brokers had collected their commissions — she was called out by one miscreant, who asked her if she believed in capitalism. Representatives of big banks and brokerages — not to mention members of Congress — are repeating this line of questioning in defending capitalism against the Department of Labor’s fiduciary rule, which they would like to repeal. The standard Marxist line on capitalism is that it is a sordid scene where the powerful, shrewd, and ruthless enrich themselves by systematically exploiting and immiserating their fellows. And that explanation does come close to describing the crony capitalist kleptocracies that blight many potentially prosperous but miserable nations. But that is not the true face of capitalism.

If a refugee commits a crime, will a federal judge have blood on his hands? President Trump says yes...But suppose that "something happens" with one of the new arrivals. Who knows; an individual could become radicalized. It would be understandable for some to blame the "court system"— understandable but wrong, according to Harvard Law School professor Charles Fried. He was the solicitor general , the government's official lawyer before the U.S. Supreme Court, during the Reagan administration. "If [an attack] were to happen it would be the fault of the law," Fried told NPR's Morning Edition, "because the judge would have determined that the law requires this." The job of the courts is to interpret the law — not to bend it to the demands of public officials.

President Trump is barreling into a confrontation with the courts barely two weeks after taking office, foreshadowing years of legal battles as an administration determined to disrupt the existing order presses the boundaries of executive power....Charles Fried, solicitor general under Ronald Reagan, said the ruling by a Federal District Court in Washington State blocking Mr. Trump’s order resembled a ruling by a Texas district court stopping Mr. Obama from proceeding with his own immigration order. But rarely, if ever, has a president this early in his tenure, and with such personal invective, battled the courts. Mr. Trump, Mr. Fried said, is turning everything into “a soap opera” with overheated attacks on the judge. “There are no lines for him,” said Mr. Fried, who teaches at Harvard Law School and voted against Mr. Trump. “There is no notion of, this is inappropriate, this is indecent, this is unpresidential.”...Jack Goldsmith, who as head of the Justice Department’s Office of Legal Counsel under Mr. Bush argued that some of the initial orders went too far and forced them to be rolled back, said on Sunday that there were similarities. “But Bush’s legal directives were not as sloppy as Trump’s,” he said. “And Trump’s serial attacks on judges and the judiciary take us into new territory. The sloppiness and aggressiveness of the directives, combined with the attacks on judges, put extra pressure on judges to rule against Trump.”

When Barack Obama and Neil Gorsuch were contemporaries at Harvard law school as the eighties rolled into the nineties, they found themselves on a tense campus riven with ideological discord...Harvard Law professor Laurence Tribe called Gorsuch “a very, very bright judge” whom he also recalled from his university days was not just learned but “very personable”. He says he knew Obama better at the time, as he was his research assistant, and got to know Gorsuch better later on, after he became a judge...At Oxford, he studied under John Finnis, the controversial Catholic conservative professor and strident proponent of natural law. “That’s telling,” said Harvard law professor Charles Fried. Fried had taught Obama and knew Gorsuch because he was a prominent member of the Federalist Society at the university, of which Fried was a faculty adviser.

Much of the response to President Donald Trump’s nomination of Judge Neil M. Gorsuch for the Supreme Court has centered on the 1991 Harvard Law School grad’s similarity to the justice he would replace, Antonin Scalia, who died last year. But the two diverge in at least one important respect, says Charles Fried, the Beneficial Professor of Law. “You won’t get any of the personalized attacks that Scalia was famous for,” said Fried. “He [Gorsuch] is not sarcastic and he is certainly not further to the right than Scalia was … his manner is much less aggressive and much more respectful of the people he disagrees with.”...Jane Nitze, J.D.’08, Climenko Fellow and Lecturer on Law at HLS, clerked for Gorsuch from 2008 to 2009, getting to know both his judicial philosophy and his character. “What struck me was his real, genuine reverence for the Constitution and the rule of law that came through on a daily basis,” said Nitze...For Richard Lazarus, Howard and Katherine Aibel Professor of Law, Gorsuch was “the single most qualified person” on Trump’s list of 21 potential nominees, a judge “who is smart and has integrity.”

Chuck Cooper is a veteran of the culture wars with a long legal career arguing hot-button social issues cases before the Supreme Court. In 1982, he wrote a brief on a case arguing in favor of giving tax breaks to private schools that discriminated based on race; in 2013, he defended California’s ban on same-sex marriage. George Conway, by contrast, is the consummate New York corporate lawyer. With a long career at the white-shoe firm of Wachtell Lipton, Conway has specialized in the very cosmopolitan area of securities litigation. He has only argued before the Supreme Court once, winning a unanimous decision on an important but decidedly un-sexy securities law case involving an Australian bank. Now the two men are embroiled in a quiet but fierce competition behind the scenes for one of the most important but least known positions in the Justice Department: Solicitor General...Charles Fried, who served as Solicitor General under President Ronald Reagan from 1985 to 1989, says he’s “very fond” of Cooper, who worked in the Civil Rights Division of the Department of Justice and then in the Office of Legal Counsel at the time. “He’s a true movement conservative, no question about it,” Fried said. “We had a lot of fights, because he wanted to go much further than I did… So we shouted at each other. But it’s all right, I always liked it.”