Bench Memos

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In a Defensive Crouch


Also at today’s New York Times, former solicitor general Charles Fried has an op-ed that seems intended to minimize the extent to which Samuel Alito, then working under Fried, opposed Roe v. Wade and sought its overturning in 1985 during internal DOJ strategizing on the upcoming Thornburgh case. “The bottom line,” Fried writes of Alito’s memo to him of May 30, 1985, “was that I should not” explicitly call for Roe’s overturning in arguing the Pennsylvania case.

Well, there are a lot of lines in Alito’s memo before one gets to the one at the bottom. And it is abundantly clear that the memo could not have been written by someone who didn’t believe that Roe was wrongly decided, and that a legitimate goal of the Justice Department was to work toward its ultimate rejection by the Supreme Court.

After a briefer take on the John-Mitchell’s-immunity-memo, Fried ends his piece with this two-sentence paragraph: “What these episodes illustrate is a man who is not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice. They also show a person who can tell the difference between the law and his own political predilections.”

I get the first sentence: Alito was clearly a shrewd tactician regarding what would fly in arguments before the Supreme Court; Fried makes a good case that in these two instances the Department rejected Alito’s advice unwisely. But I don’t get the second sentence at all.

Perhaps one of the most important things we can find out about a prospective judge is whether he holds his understanding of the law apart from, clearly distinguished from, any political predilections of his own. But nothing in the tales Fried tells about Alito’s advice in the SG’s office can help us in any way to know whether Samuel Alito does this. All that we can say from these stories is that Alito was a canny predictor of how the Supreme Court would respond to certain sorts of arguments, given the roster of justices at the time. Mind you, I think it could be shown that Alito can tell the law from his own politics, but Fried has in no way shown it here.

Fried’s final sentence only makes sense, as a conclusion from his own stories here, if he believes that “the law” means “whatever the Supreme Court next pronounces it to be.” Perhaps Professor Fried agrees with Oliver Wendell Holmes, who wrote in 1897 that “a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.” And agreeing with Holmes the legal realist would seem rather to disqualify a candidate for the Supreme Court than to qualify him for it.


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