In today’s New York Times, Charles Fried–longtime Harvard law professor, former Reagan solicitor general, and former justice of the Massachusetts Supreme Judicial Court–opines grandly on Gonzales v. Carhart under the title “Supreme Confusion.”  But it’s Fried who is deeply confused.  (Nothing new there.  See my review of one of his books in the May 17, 2004 NR.)

Like Justice Ginsburg, and countless other worshipers at the altar of judicial power, Fried thinks that if some self-interested doctors’ organizations can persuade a district court judge or two that partial-birth abortion is sometimes “safer for the mother” than other abortion methods, then we can conclude that Congress engaged in “bogus fact finding” when it drew the opposite conclusion after an extensive legislative process.  And Fried seems to think that if we can imagine just one case of an “increased health risk” where the partial-birth method is rejected, a facial challenge to the law ought to have succeeded.  He appears not to know that for 34 years, “health exceptions” to abortion statutes have been responsible for obviating all restrictions and producing the wide-open abortion-on-demand regime that has made America a dangerous place to be a fetus.  (Oh, and along the way he manages to locate the Stenberg case of 2000 in Kansas, when it was actually Nebraska.  It’s okay, they’re next-door neighbors!)

Fried ends his op-ed with a truly bizarre statement.  After referring to certain areas of the law as “truly incoherent” and blaming Justice O’Connor for most of the mess (the only thing he gets right), Fried writes this:

If the justices eliminate the confusion and restore principle in those areas, the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law.  And last week’s decision will lend plausibility to that charge.

Huh?  How is it that a restoration of principle can plausibly be condemned as a failure to reason carefully?  Sure, as justices change, jurisprudence will change, for worse or for better.  If it’s for the better, won’t Charles Fried defend the Court against the “cry that will go up”?  When was the last time Fried reasoned carefully?  I can’t recall.

But worse than the rapidly collapsing end of his article is the pompous beginning.  Here Fried self-importantly recounts his testimony in the Roberts and Alito hearings, in which he assured Senator Dianne Feinstein that in his opinion these two nominees would probably not vote to overturn Roe v. Wade, which would be a “violent unsettling of the law against which respect for precedent is meant to protect.”  Not a peep from Fried about the “violent unsettling” of the Constitution that Roe itself represented.

Anyway, Fried announces that as to Alito and Roberts and the future of Roe, the Carhart ruling “does not change my mind.”  Yo, John?  Sam?  You’re on notice.  If you vote to overturn Roe v. Wade, Professor Charles Fried of Harvard Law School will be vewwy, vewwy disappointed.

That ought to keep them up nights.