Harvard’s Charles Fried Valued Civil Discourse and an Open Mind

On Jan. 23, the legal world lost one of its greatest minds when professor Charles Fried of Harvard Law School passed away at 88. He spent most of his long and distinguished career as a Harvard law professor, but he also served as both US solicitor general (1985-1989) and a justice on the Massachusetts Supreme Judicial Court (1995-1999).

Born in Prague to Jewish parents, Fried fled Czechoslovakia with his family in 1939, ahead of the Nazi invasion. After two years in England, they settled in New York City.

Fried went on to a spectacular academic career, earning degrees from Princeton, Oxford, and Columbia Law. After clerking on the US Supreme Court for Justice John Marshall Harlan II, Fried joined the Harvard Law faculty in 1961, at the tender age of 26—and taught there until retiring last year. (Fun fact: the future Justice Stephen Breyer was a student in the first class that Fried ever taught.)

Charles Fried testifies about US Supreme Court nominee Samuel Alito on Jan. 13, 2006.

Photo by Joe Marquette/Bloomberg via Getty Images

One can read about Fried’s remarkable life and career in New York Times and Washington Post obituaries. I’d like to focus on specific qualities of his that are unfortunately in short supply today in our public life: his open-mindedness, commitment to civil discourse, and willingness to change his mind.

In 1989, as solicitor general, Fried argued to the Supreme Court that Roe v. Wade, which recognized a constitutional right to abortion, should be overturned. But three decades later, in 2021, he wrote a Times opinion piece urging the court to uphold Roe: “To overturn Roe now would be an act of constitutional vandalism.”

Abortion wasn’t the only issue where Fried had a change of heart. During his time in the Reagan administration’s Justice Department, Fried advanced conservative positions on a variety of controversial issues, including affirmative action and voting rights. But in the ensuing decades, the once-staunch conservative “learned a certain moderation,” as he put it in a Harvard Law panel discussion last February.

And in the final decade or so of his life, the former Reaganite came out in favor of Hillary Clinton in 2016 and Joe Biden in 2020. An outspoken critic of Donald Trump, Fried criticized “people who claim they’re conservatives” and yet support “this completely lawless, ignorant, foul-mouthed president.”

Fried’s willingness to reconsider his views extended from the major to the mundane. When he retired from Harvard Law, the Harvard Federalist Society, which he served as faculty adviser for decades, collected alumni tributes.

Walmart chief legal officer Rachel Brand, who clerked for him on the Massachusetts Supreme Judicial Court, had this to say: “One of my most cherished small triumphs—which he undoubtedly does not remember—was convincing him that I was right about a matter of punctuation. His decorum and demeanor—even when he holds strong views—are a model for me and the legal profession.”

Or as Lee Rudofsky, now a federal judge in Arkansas, wrote in his own testimonial, Fried combined an “unwavering commitment to freedom of thought and inquiry” with “unfailing politeness to everyone he encountered. Countless lawyers are far better lawyers and far better people because we had him to admire and emulate.”

Yes, some Harvard Law conservatives viewed Fried as a so-called “RINO,” or “Republican in Name Only.” But they still adored him, as professor Brian Fitzpatrick of Vanderbilt Law School told me.

“He advised my 3L paper on the constitutionality of race-neutral affirmative action,” Fitzpatrick recalled. “It is clearly unconstitutional, but he thought otherwise, and the opportunity to match wits with him made the paper stronger. Yes, he was a RINO even then—but he was our RINO, and we loved him.”

Some on the right might have felt betrayed by Fried’s evolution from conservative to moderate. But in his view—one held by too few in this day and age, where confession of error is seen as weakness—being willing to change your mind, when confronted with new information or arguments, is a virtue.

Indeed, just before his death, he was working on a book titled “Why I Changed My Mind,” exploring how great leaders from James Madison to Mikhail Gorbachev shifted their views on key issues.

Although I never had the privilege of having Fried as a professor, I too admired him and his work, and our paths crossed from time to time. The summer before I started law school, I read his brilliant book “Contract As Promise,” an exploration of the philosophical foundations of contract law. In 2006, we appeared together on the “Charlie Rose” program to discuss the Supreme Court nomination of then-Judge Samuel Alito.

And in 2015, he kindly agreed to join me for a book talk about my novel, “Supreme Ambitions,” at Harvard Law School. He was incredibly insightful, as I knew he would be, but I was surprised by how absolutely hilarious he was. He had a dry, understated wit, and there were times I had a hard time speaking because I was laughing so hard. I still recall his quip about the graduates of my alma mater, Yale Law School: “Smart, humane, and not knowing anything about anything.”

Professor Fried was smart and humane, and he knew everything about everything. May he rest in peace—and may he inspire all of us to be open to changing our minds.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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