Book Review

Explaining Supreme Court Doctrine:

Saying What the Law is
by Charles Fried
(Harvard Univ. Press, 2004)

reviewed by Richard A. Forsten, Esquire

Professor Charles Fried served as Solicitor General for several years under Reagan, and also served for four years as an Associate Justice on the Massachusetts Supreme Court. His new book, Saying What the Law is, The Constitution In The Supreme Court, is, in his words, “neither a treatise nor a reference work.” Rather, “it offers an understanding of the main topics of constitutional law.” In other words, Fried looks at several areas of constitutional law and in each area attempts to set forth what he sees as the underlying themes and theories which bring coherence to each of these disparate areas.

Specifically, Fried looks at six areas of constitutional law: federalism, separation of powers, speech, religion, liberty, and equality. In each of the areas he examines, Fried offers interesting insights about constitutional doctrine, but his short afterword at the end may be the most interesting part of his book.
The book begins with a review of the Supreme Court’s most recent decisions involving federalism. After a general history of the Court’s federalism decisions, culminating in NLRB v. Jones & Laughlin Steel Corp. and Wickard v. Filburn, Fried examines the recent Supreme Court decisions in United States v. Lopez (which struck down the federal Gun-Free School Zones Act) and United States v. Morrison (striking down certain provisions of the Violence Against Women Act) – the first two cases to strike down congressional legislation as exceeding Congress’ Commerce Clause power since before the New Deal. While many commentators have expressed alarm that the current Court is attempting to roll back constitutional doctrine, Fried believes the Court was simply trying to find a standard that still provided meaning to the constitutional text. Under the Commerce Clause, Congress can regulate people and things moving in interstate commerce, and economic activity that has a substantial effect on interstate commerce, but the Court has attempted to draw a standard which prevents Congress from essentially being able to regulate everything, including those areas that have traditionally been areas of state and local concern.

With respect to religion and the establishment clause in particular, Fried provides the background, but is less successful in deriving any cohesive themes. Indeed, he refers to Supreme Court decisions in this area as a “jumble of doctrine, conflicting precedents, and uncertain principles.” Part of the problem, of course, is that the Supreme Court itself has been conflicted over time on the meaning of the establishment clause and the free exercise of religion. Ultimately, Fried concludes with the metaphor and hope that the “religion clause doctrine should leave considerable distance between the floor of free exercise and the ceiling of establishment.” However, he expresses concern that “some of the [Court’s] more extreme doctrines…[n]ot only leave no room between the ceiling and the floor but sometimes set the floor above the ceiling.”

In his chapter on liberty, Fried provides an excellent short history of substantive due process and fundamental rights, tracing the Supreme Court case law from the second Justice Harlan’s dissent in Poe v. Ullman to the Court’s recent invalidation of Texas’ sodomy laws in Lawrence v. Texas. In his chapter on equality, Fried offers some interesting observations in connection with the Court’s recent decisions regarding affirmative action at the University of Michigan. After quoting Justice O’Connor’s statement that it has been 25 years since Bakke and that 25 years from now the Court expects that racial preferences will no longer be necessary, Fried complains:

“This [25-year expectation] is no limitation at all. Fifty years are long enough to make dividing us up by race a habit, to create a practically and politically unshakeable sense of entitlement in those who think they benefit from such schemes and in the racial entrepreneurs who know they do. And even Justice O’ Connor’s too distant end point is expressed only as an expectation. It may be that the only way to get beyond racism is just to stop using race – not today or tomorrow but with all deliberate speed, in say, five or seven years. Only with such a determinative end point will institutions have the incentive to confront the political pressures arrayed against a truly unitary concept of citizenship. I believe the Court should have allowed both programs to continue, but only on condition that the university revise them to state a fixed, determinate period of years after which they would come to an end.”

Fried’s short (5 page) afterword, though, provides perhaps his most interesting observations. He begins by explaining:

“In the first chapter I left open whether doctrine is possible for the controverted and difficult questions of constitutional law and whether the Court is in fact constrained by doctrine. If the answer to these questions is no, then there is no constitutional law; there are only constitutional decisions. The chapters that followed displayed those decisions as if doctrine is possible and – what comes to the same thing – as if doctrine does guide the Court. I have proceeded almost as if politics did not exist. . . If politics – in the high sense of policies championed out of a commitment to a controverted conception of the public good – ruled the Court, then each new appointment would be like a new election, with decisions determined by party platforms.

“The work of the Court has not been like that. It would take Olympian confidence in one’s own powers of discernment to wave aside as so much high-blown rhetoric the elaborate doctrinal structures I have displayed in this book – rhetoric that digs no channels to confine the flow of decision. A law professor or political scientist may be tempted to such an Olympian stance. But I have worked not only as a scholar and teacher but as an advocate before the Court. An advocate may only rarely and discreetly allow himself to urge his case in political terms. Almost the whole work of the advocate is to take doctrine seriously and to show how the position he urges fits into existing doctrine, or occasionally how the advocate’s position may be adopted by the Court so that it will work as doctrine and precedent into the indefinite future.”

Having concluded with his belief in doctrine, Fried allows himself a brief moment to speculate on the future direction of the Court, as new justices join and current justices depart. He is fairly sanguine that there will be few reversals of existing cases – even those decided by a narrow 5-4 majority – as he does not believe those cases meet the requirements for reversal as laid out by the joint opinion in Planned Parenthood v. Casey, when the Court refused to reverse Roe v. Wade.

As a former judge and former solicitor general, Fried is well-positioned to write on constitutional doctrines, and his book does what he set out to do: “it offers an understanding of the main topics of constitutional law,” and it does so in a well-written, concise manner that also offers many interesting insights.

Return to September 2004 Table of Contents.