Charles Fried, Legal Scholar Who Broke With Conservatives, Dies at 88

Charles Fried, a conservative legal scholar who as President Ronald Reagan’s solicitor general argued against abortion rights and affirmative action before the Supreme Court — but who later rejected the conservative legal movement’s rightward march, calling the current high court “reactionary” — died on Tuesday at his home in Cambridge, Mass. He was 88.

His death was announced by Harvard Law School, where Mr. Fried taught many thousands of students beginning in 1961, among them a future Supreme Court justice, Stephen G. Breyer, and a future Massachusetts governor, William F. Weld.

Mr. Fried (pronounced “freed”) was a son of Jewish parents who fled Czechoslovakia in 1939 to escape Naziism, and whose hopes of returning home after the war were thwarted by the descent of the Iron Curtain. He traced his political conservatism both to that background and to the hard-left atmosphere prevailing at Harvard Law School in the 1970s, which, he recalled, included faculty-led Marxist study groups.

He became “quite allergic to the left,” Mr. Fried said at a law school panel last year. “And that allergy took a form where I wanted to be rather in opposition. And what better way to be in opposition than to go into the Reagan administration?”

In 1985, as solicitor general — the White House’s representative before the Supreme Court — Mr. Fried argued that Roe v. Wade should be overturned. But he later changed his mind. As the high court’s Republican-appointed supermajority looked likely to reverse Roe, Mr. Fried wrote in 2021 in an opinion column for The New York Times, “To overturn Roe now would be an act of constitutional vandalism.”

His reasoning was that a 1992 case, Planned Parenthood v. Casey, had more firmly established the right to abortion than when he opposed it for the Reagan White House.

At the Harvard panel last year, titled “Why I Changed My Mind,” Mr. Fried said his intellectual evolution from conservative to moderate had also been shaped by conversations with his adult children and grandchildren. “We talk, and I have to listen as well as talk,” he said. “So, in the course of that, it has changed me.”

Although Mr. Fried testified in favor of the confirmation of John G. Roberts as chief justice in 2005, he became an outspoken critic of the Roberts court over its rulings limiting voting rights, labor unions and campaign finance reform, as well as its refusal to limit blatant partisan gerrymandering.

He called those decisions “reactionary, not conservative,” in the classical sense of conservatism as respect for precedent and a belief in change that is incremental and not radical.

Justice Breyer, who was appointed to the high court by President Bill Clinton and retired in 2022, suggested in a statement that Mr. Fried was willing to change his views because of his innate intellectual honesty.

“Charles loved ideas,” he said. “He would try them out on his colleagues and friends, discarding some, developing others, and always listening to the thoughts of others.”

Mr. Fried’s academic interests included how moral and political philosophy shed light on legal problems; he wrote several books on the topic, including “An Anatomy of Values” (1970) and “Right and Wrong” (1978).

A longtime Republican who for 40 years advised the Harvard chapter of the conservative Federalist Society, Mr. Fried was an especially harsh critic of President Donald J. Trump’s disdain for courts and the law, and of the Justice Department under his second attorney general, William P. Barr.

Mr. Fried and other Republican and conservative lawyers, members of a group called Checks & Balances, castigated Mr. Barr publicly for defending Mr. Trump’s attempts to obstruct the investigation of Russian interference in the 2016 election and, in 2019, to pressure Ukraine — which led to Mr. Trump’s first impeachment.

“The people who claim they’re conservatives today are demanding loyalty to this completely lawless, ignorant, foul-mouthed president,” Mr. Fried told The Times in 2019. He disclosed in The Boston Globe in 2016 that he planned to vote for Hillary Clinton.

During Mr. Trump’s second impeachment trial, for inciting an insurrection on Jan. 6, 2021, Mr. Fried joined other constitutional lawyers in a statement calling claims by Mr. Trump’s defense team that his conduct was protected by the First Amendment “legally frivolous.”

Charles Fried was born Karel Fried in Prague on April 15, 1935, to Antony and Martha Fried. His father was a senior vice president at Skoda Works, a heavy machinery and arms manufacturer. The family fled to England — “with Hitler as my travel agent,” as Mr. Fried once put it — where they lived for two years before relocating to New York City in 1941.

(When the Communist government in Prague collapsed in 1989 during the Velvet Revolution, Mr. Fried joined other Western lawyers in advising the Czech government on a new constitution.)

After graduating from the Lawrenceville School in New Jersey, he earned a B.A. in modern languages and literature from Princeton in 1956. He studied law and philosophy on a Fulbright scholarship at the University of Oxford, then graduated from Columbia Law School in 1960.

He was a clerk for Supreme Court Justice John Marshall Harlan II and in 1961, at 26, joined the Harvard Law School faculty. Mr. Breyer was in his first class, on criminal law.

The Reagan administration recruited Mr. Fried when he was 50, partly on the strength of issue papers he had written for the Reagan campaign of 1980 about, among other things, how to voice opposition to the Equal Rights Amendment in a presidential debate.

Except for his years as solicitor general, from 1985 to 1989, and a stint as an associate justice on the Massachusetts Supreme Judicial Court from 1995 to 1999 (he was appointed by his former student, Governor Weld), Mr. Fried spent nearly 60 years on the Harvard Law School faculty.

In 1993 while at Harvard, he argued a case before the Supreme Court, Daubert v. Merrell Dow Pharmaceuticals, which set standards for expert scientific testimony in federal courts.

His survivors include his wife, Anne Summerscale, whom he married in 1959; a son, Gregory, a philosophy professor at Boston College; and a daughter, Antonia Fried, a psychologist.

Mr. Fried announced his retirement in December, though he said he planned to continue weighing in on the legal and political issues of the day.

“What do I plan next?” he said. “What I always do here, except for the classes. I write, I go to workshops, I read my colleagues’ work, I comment on it, and then I write my own work.”

That same month, in a column in The Harvard Crimson, Mr. Fried defended the university’s president, Claudine Gay, after she came under fire for her response to antisemitism on campus.

He continued to defend her after the attacks broadened to include Dr. Gay’s scholarly record. He told The Times that he discounted accusations of plagiarism against Dr. Gay because they were part of an “extreme right-wing attack on elite institutions.”

Dr. Gay resigned in January after further pressure and accusations of plagiarism.