Charles Fried

Going Rogue

As everyone knows, the health care reform lawsuits that are currently making their way to the Supreme Court are being shepherded and applauded by conservatives. But how conservative is the judicial philosophy behind the suits? The answer turns out to be complicated. In fact, once the lawsuits end up at the Court, they will likely expose ideological fissures in the conservative legal movement that may unsettle those on both the right and the left. To understand why, consider what these lawsuits are actually about.

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One of the striking things about Roger Vinson's ruling striking down the Affordable Care Act -- which I appraise rather critically in my latest TRB column -- is that there are three distinct legal rationales for the law, and Vinson's ruling finds a way to reject all three of them. One rationale is Congress's authority to tax, which Vinson rejects by deciding the penalty on people who go without health insurance is not a tax.

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Are there any conservative legal scholars out there who dislike health care reform on the merits but still think the individual mandate is perfectly constitutional? There's Harvard Law Professor Charles Fried, for one. Earlier today, at a Senate Judiciary Committee hearing on the constitutionality of the health care bill, Ronald Reagan's old solicitor general called the soundness of the mandate a "no-brainer." Fried opened his testimony by burnishing his conservative bona fides: "I come here not as a partisan for this act. I think there are lots of problems with it.

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One of the supposed knocks against Elizabeth Warren is that she’s an ideological crusader bent on destroying capitalism as we know it. If she were to lead the new consumer protection agency, she could do serious harm to the country. But Charles Fried disagrees. Fried, who spoke to TNR this afternoon, is one of Warren's colleagues at Harvard Law School. He also served as solicitor general under Ronald Reagan and openly supported the nominations of John Roberts and Samuel Alito to the Supreme Court. In other words, he's a bona fide conservative.

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Substantively, I'm pretty happy with the Elena Kagan nomination. Politically, though, I suspect the White House has made a mistake. The calculation seems to be that Kagan is their most confirmable pick. Why? Well, Senators like Orrin Hatch have said nice things about her in the past. Conservatives at Harvard like Charles Fried like her. On the other hand, there are entry points to rile up the conservative base against her. There's Kagan's opposition to ROTC based on the military's discrimination against gays. She wrote a college paper that seemed vaguely sympathetic to historical socialism.

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[Guest post by the TNR staff.] What should we make of Elena Kagan's nomination to the Supreme Court? Read all of The New Republic's analysis below. Jeffrey Rosen explains why Kagan is the ideal justice to represent Obama's judicial philosophy: It’s certainly fair for progressive senators to worry whether Kagan would move to the Court to the right.

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Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted. Here is how I think the nomination process is likely to play out. I divide it into process and substance. First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28.

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The Next Justice

Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on February 23, 2010. When Justice Stevens retires, what happens then? There will be a pretty efficient process. The White House will receive significant pressure from both the right and left, all of which it will basically ignore. Conservatives will want to use the Court as a rallying point for their base for the 2010 midterm elections and beyond.

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Charles Fried, a professor at Harvard Law School, has long been one of the most important conservative thinkers in the United States. Under President Reagan, he served, with great distinction, as Solicitor General of the United States. Since then, he has been prominently associated with several Republican leaders and candidates, most recently John McCain, for whom he expressed his enthusiastic support in January. This week, Fried announced that he has voted for Obama-Biden by absentee ballot.

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