Charles Fried

Associate Justice memorial

495 Mass. 1305 (2025)

A special sitting of the Supreme Judicial Court was held at Boston on February 6, 2025, at which a Memorial to the late Justice Charles Fried was presented.

Present: Chief Justice Budd; Justices Gaziano, Kafker, Wendlandt, Georges, Dewar, and Wolohojian.

Chief Justice Budd addressed the court as follows:

Good afternoon, everyone.  My name is Kimberly Budd, and on behalf of the Justices of the Supreme Judicial Court, I am pleased to welcome you to this memorial sitting for the Honorable Charles Fried, who served as an Associate Justice of this court from 1995 to 1999.

I would especially like to welcome the members of Justice Fried's family who are in attendance, including his wife, Anne Summerscale; their children, Antonia and Gregory; and his daughter-in-law, Christina Hardway.  We are also pleased to welcome Justice Fried's friends and colleagues –- many of whom worked with him at Harvard Law School –- as well as members of the bar, judges, clerks, and other leaders, past and present, from across the justice system.

Although I did not have the opportunity to take any courses with Justice Fried when I was in law school in the early 1990s, I certainly recall his reputation as a respected scholar and popular professor.

We are pleased to be able to honor him this afternoon as a former Justice of the Supreme Judicial Court.

The court now recognizes First Assistant Attorney General Patrick Moore.

M. Patrick Moore, Jr., First Assistant Attorney General, addressed the court as follows:

Good afternoon, and may it please the court:  Pat Moore on behalf of the Commonwealth of Massachusetts.

As the First Assistant Attorney General of the Commonwealth, it is my honor to present, on behalf of the Commonwealth, a memorial and tribute to the late Justice Charles Fried.  Justice Fried served on the Supreme Judicial Court with distinction as an Associate Justice from 1995 until 1999.

Chief Justice Budd, Justice Gaziano, Justice Kafker, Justice Wendlandt, Justice Georges, Justice Dewar, Justice Wolohojian, it is an honor to appear before you today as we recognize and celebrate this remarkable life and legal career.

As Chief Justice Budd did, on behalf of the Commonwealth, I would like to recognize the members of Justice Fried's family who are with us today.  It is a pleasure to be here with the Fried family and so many respected members of our legal community to pay tribute to Justice Fried, a titan of the law.  He was a jurist of towering intellect, known for his commitment to public service and his many decades as one of the nation's most esteemed law professors.

Associate Justice Fried was born in Prague, Czechoslovakia, in 1935. In 1939, Justice Fried and his family fled the country to escape Nazi aggression in central Europe.  They eventually settled in New York, and Justice Fried became a United States citizen at the age of thirteen.

He earned his bachelor's degree from Princeton University in 1956; a bachelor's and a master's degree from Oxford University in 1958 and 1960, respectively; and a juris doctor from Columbia University School of Law.

He began his distinguished legal career as a law clerk to Justice John Marshall Harlan, II, at the Supreme Court of the United States before joining the Harvard Law School faculty in 1961.

In joining the Harvard Law School faculty, Justice Fried embarked on over six decades of legal scholarship covering a wide range of topics.  He wrote numerous books and countless articles covering contracts, torts, constitutional law, and everything else, reflecting the depth and breadth of his legal expertise.

Justice Fried taught future Supreme Court Justices, Solicitors General, Justices of the Massachusetts appellate courts, State Attorneys General, and multiple generations of lawyers and law professors. It is no exaggeration to suggest that many people in this court room today either (i) learned contracts, constitutional law, or the First Amendment to the United States Constitution directly from Justice Fried himself; or (ii) learned one or more of those topics from a professor who was taught them by Justice Fried.  I count myself in the latter group.

Justice Fried was also committed to public service.  He undertook numerous legal roles in the Reagan administration, including with the Department of Transportation, with the Department of Justice, and with the Executive Office of the President.

In 1985, Justice Fried was nominated by President Ronald Reagan and confirmed by the United States Senate as the thirty-eighth Solicitor General of the United States.  He served in that capacity until 1989, representing the United States in dozens of cases before the Supreme Court.

And the reason we are gathered here in this chamber today, Justice Fried served as an Associate Justice of this court from 1995 to 1999. Fittingly, he was nominated to this court by a former student, Governor Bill Weld.

During his time on this court, Justice Fried left his mark on the practice of law in this building and in the tower beforehand and on the precedent of the Commonwealth.  His approach to oral argument helped transform the questioning of advocates before this court.

He left evidence of his wit and wisdom throughout the pages of the Massachusetts Reports.  In the Alliance, AFSCME/SEIU, AFL-CIO cases,¹ he gracefully navigated the court out of a constitutional dispute between the Governor, on the one hand, and the Legislature, on the other, about the scope of the line-item veto power.  In dissent in Commonwealth v. Gonsalves,² he offered a quip that will live long in State constitutional law case books.  Unpersuaded by his colleagues' analysis, he suggested that locating broader rights in the Massachusetts Constitution must be supported by more than a claim that "John Adams made me do it."³

A generation of advocates before the courts of the Commonwealth have searched for Justice Fried opinions, knowing that his prose was concise, that it was colorful, that citation to it would be memorable text to sprinkle through briefs on topics ranging from contract law to administrative deference.

After his time on the Supreme Judicial Court, Justice Fried returned to his passion of teaching, committed to influencing how the public and the bar understood the role of the rule of law in our democracy.

The principles he espoused are as important today as ever:  respect for institutions, for precedents, for traditions; judicial modesty; incrementalism; thoughtfulness; and a willingness to constantly reassess one's thinking. These principles live on at the Supreme Judicial Court where he served, even if -- as Justice Fried repeatedly pointed out -- they may now have fewer adherents elsewhere in our national system of government.

Reflecting on the life and legacy of Justice Fried, Supreme Court Justice Stephen Breyer stated:  "Charles loved ideas.  He would try them out on his colleagues and friends, discarding some, developing others, and always listening to the thoughts of others."  What a legacy to leave.

Harvard Law School Dean John Manning said:  "Those who knew him well will not soon forget Charles's unfailing kindness, generosity, brilliance, wisdom, warmth, and wit.  Charles was a great lawyer, who brought the discipline of philosophy to bear on the hardest legal problems, while always keeping in view that law must do the important work of ordering our society and structuring the way we solve problems and make progress in a constitutional democracy."

What a remarkable life.  A principled, kind, and thoughtful man, devoted to public service, the betterment of the law, and the training of the bar.  The Commonwealth owes him our gratitude for his impact on our courts, the legal profession, and the rule of law; perhaps more importantly, we owe him our gratitude for the example of his principled approach to life and the law.

It is with deep appreciation for his service and his commitment to justice and the rule of law that we remember Associate Justice Charles Fried.

I move, on behalf of the Commonwealth, that this Memorial be spread on the records of the Supreme Judicial Court.  Thank you.

William F. Lee, Esquire, addressed the court as follows:

May it please the court.  My name is Bill Lee, and it is my honor to appear before you today to speak about the extraordinary life and career of Justice Charles Fried.  As his colleague and friend Larry Tribe said, "A great man has died.  We will not see anyone like Charles Fried again."  He was, as Professor Tribe continued, "One of a kind, a towering intellect, erudite beyond belief, invariably kind, and unfailingly decent."  And, for me personally, he was my friend for more than forty years.

When I reflect on my long friendship with Charles over those forty years, I am constantly reminded of many characteristics but one in particular, and that was his intellectual curiosity and his openness to new ideas.  I would often offer a thought to him or an argument to him, and he would respond by saying, "How interesting."  He would then say very quickly, "Tell me why you think that is correct."  What would follow was inevitably a lengthy and meaningful conversation where he would listen and discuss, and often not agree with, whatever I had suggested as a proposition.

That Charles found everything so interesting is particularly remarkable because his own story was so interesting, his life itself a thread woven through the fabric of the Twentieth and Twenty-first Centuries.  As Mr. Moore said, Charles was born in Prague to Jewish parents; he fled Czechoslovakia with his family in 1939, just ahead of the Nazi invasion.  Joseph Stalin's rise to power in Russia and the fall of the Iron Curtain made it impossible for the family to return.  After two years in England, Charles's family made its way to New York.  Charles became an American citizen in 1948 as a young teenager.

He went on to an incredible academic career, as Mr. Moore recounted, at Princeton, at Columbia, at Oxford.  He then went on to clerk for Justice Harlan of the United States Supreme Court from 1960 to 1961.  There, among other things, he participated in drafting the now famous Harlan dissent in Poe v. Ullman,⁴ stating that the liberties protected under our Constitution were not limited to the liberties specifically enumerated but included unenumerated, unexpressed rights, such as the right to privacy in one's own home.

Charles was hired as a professor at Harvard Law School at the tender age of twenty-six and made the Commonwealth of Massachusetts his home.  At Harvard Law School, he taught a wide range of courses, well beyond anything any of us could do:  appellate advocacy, commercial law, constitutional law, contracts, criminal law, torts, Roman law, and more.  Among his first students was Stephen Breyer, his future colleague at Harvard and the future Supreme Court Justice.

In 1985, as Mr. Moore said, President Reagan nominated Charles to become the thirty-eighth Solicitor General of the United States.  In that role, he argued more than twenty cases before the Supreme Court, including a victory in Mistretta v. United States,⁵ which upheld the constitutionality of the United States Sentencing Commission.

It was during his tenure as Solicitor General that Charles and I first crossed paths.  At the time, I was a member of the Office of the Special Counsel for the Iran-Contra Investigation, Lawrence Walsh.  Charles, on the other hand, was arguing for the Reagan administration that the statute that authorized our creation was unconstitutional.  So, our relationship began with a disagreement over a pretty fundamental issue.  But even at that time, I was struck by Charles's openness to engaging with the arguments on the other side, even though we were on opposite sides and reached radically different conclusions on the constitutionality of the office.

Both of us eventually returned to Boston -- Charles to Harvard, and I to the firm Hale and Dorr.  At the time, Hale and Dorr did not have an appellate practice; instead, we had a tradition of trial lawyers like Jim St. Clair and Jerry Facher who tried their own cases and handled their own appeals.  We believed, however, that life was changing, and having experienced, top-of-the-line appellate advocates was key to the manner in which practice was moving. We decided we needed a dedicated and sophisticated appellate practitioner for all of our major cases.  I asked Charles whether he might consider serving as our appellate co-counsel.  He agreed, and we worked together on all sorts of cases in all sorts of courts.  He became our go-to appellate specialist whenever we had a major appeal, and certainly when we had anything that went to the United States Supreme Court.  He of course eventually returned to the Supreme Court and argued the landmark case of Daubert v. Merrell Dow Pharms., Inc.,⁶ the case that still today sets the standards for the admission of expert testimony in courts.

Perhaps because of my work with him, Charles approached me and asked me to represent him when his former student (and my former partner) Governor Bill Weld nominated him to serve as an Associate Justice of this court.  He asked me to help prepare him for his confirmation hearing before the Governor's Council.  I told him, "Charles, it's August.  I'm going on vacation.  I can't do it."  He said, "It's only going to be a day.  I promise you it's only going to be a day.  Will you do it?"  And I said, "Of course."  It turned out that his nomination was a little bit more contested, and the hearing lasted two weeks.

Preparing Charles, a longtime professor and former Solicitor General, to be examined by members of the Governor's Council as a witness was interesting to say the least.  I can recall that, on one occasion, we said to Charles:  "When someone is asking you a question, they might be holding a piece of paper in their hand and they might say, 'Isn't it true that you said such and such.'"  And we told Charles that, of course, the person might be holding a piece of paper that had something he had written or something he had said, but they also might be just holding a piece of paper.  So, we told Charles that, if that occurred and he couldn't remember writing that statement or he couldn't remember saying what was said, he should say, "I don't recall writing that, I don't recall saying that, but you appear to be holding a piece of paper.  Would you like to share it with me?"  Now, Charles responded to our advice by saying, "How interesting."  We came to his hearing before the Governor's Council, and one of the questioners immediately began to ask him about statements that he had made in briefs when he was Solicitor General, and the Councillor was holding a piece of paper and said, "Professor Fried, isn't it true that you said X and X?"  Charles, ever the perfect student, said, "I don't recall saying that.  I don't recall writing that.  But you appear to have a piece of paper, and if you'd like to share it with me, I'd be happy to comment."  The member of the Council said, "I'll mail it to you."

Charles was, of course, eventually confirmed, and he served as an Associate Justice of this court for four years.  When I started practicing many years ago, in 1977, before this court, arguments were different than they are today.  A lawyer might appear before the court, and I did, and speak for fifteen or twenty minutes and not be asked a single question.  That doesn't happen today.  Charles, Chief Justice Margaret Marshall, and members of this court have changed that entirely, and today arguments before this court are before one of the hottest benches in the country.  Charles was one of the people who made that happen.

Charles kept teaching even while a member of the court, and he eventually left the bench to rejoin Harvard Law School full time in 1999.  By then, I had also joined the Harvard Law School faculty.  At one point, now Justice Elena Kagan and Martha Minow, who is here with us today, asked a group of us to develop a new course called the problem-solving workshop, a course for first-year students that actually taught them real-life methods and real-life skills to address real-life problems.  Case studies were developed by a group of us based upon Harvard Business School case studies, but they were based on real legal issues and real legal problems.  And after two years of developing these problems and these case studies, we began teaching a new course with different pedagogy, different substance, and different tasks for the students, including teaching them to work in teams.  It was a different course.

After we had taught the course for several years, Charles asked about the course.  I described its structure, its content, its case studies, and the fact that we were teaching it to the students and they had to work in teams.  He responded, "How interesting."  A few months later, Martha Minow told me that he had asked to teach it himself.

The January term began.  The first day of classes occurred.  That afternoon, I got a call from Charles, who said, "This is different than teaching anything I've taught before.  I'm not sure I know how to do it."  I went to his house at 4 o'clock, and we spent four hours together.  He was the ultimate, perfect student, and an incredible sponge.  He returned to the classroom the next day, taught the remainder of the January term, and his problem-solving workshop was, by all accounts, an enormous success.

He again demonstrated his interest in and dedication to innovation in 2014.  Harvard and the Massachusetts Institute of Technology had joined together to form an online learning platform called EdX, and faculty began to develop courses to be offered broadly and digitally.  Charles was captivated by the opportunity to teach in a different way to a different group of students and designed and prepared a course entitled "Contract Law:  From Trust to Promise to Contract."  It was one of the very first courses offered on this digital platform, and it was, like his other teaching, enormously successful.  Since its launch, more than 630,000 students have benefited from that course and Charles's instruction.  And if you have not seen the avatar of Charles, I recommend it to you.

Charles's incredible openness to engaging with folks with different points of view was what made our friendship possible and his life so meaningful.  As I said, we started our relationship on the opposite sides of a fundamental issue, and over the years we disagreed on many issues.  But we became very, very close friends.  And Anne became one of our dearest friends as well.  Charles and Anne were at every major event of our family -- graduations, weddings, birthdays.  And Charles was even kind enough to officiate at my son's wedding on the shore of Boothbay Harbor in Maine.

His openness and curiosity for life never, ever ended.  Just weeks before his passing, he was in the hospital on the last day of December 2023.  He called me.  For about three minutes, we talked about how he was doing physically and why he was in the hospital.  And then he began a conversation that lasted for the next hour about free speech on university campuses in the environment that we are in today.  As many of you know, his final book, not completed when he passed away, was describing the reasons that he changed his mind over the years on many issues and just why he changed his mind.  Charles's passing was a great loss for his family, for Harvard, for Boston, for the Commonwealth, and for our nation.  His passing is also an enormous loss for the profession.  For my wife, Leslie, and me personally, it is his openness, it is his curiosity, it is his warmth, it is his friendship that we will miss the most.  And I am quite sure that Charles is sitting up there somewhere today looking down upon all of us in this event,  and he is saying, "How interesting."  Thank you, Your Honors.

Louis W. Tompros, Esquire, addressed the court as follows:

May it please the court.  Good afternoon, Chief Justice Budd, Associate Justices, First Assistant Attorney General Moore, members of the Fried family, and friends.

As you have already heard today, Charles Fried was a towering intellect, a deeply committed public servant, an inquisitive scholar, and a warm friend.

To that litany I would add this.  He was also a caring mentor -- and an exemplary model -- to literally generations of lawyers and law students in our Commonwealth and across our nation.  He practiced law, he adjudicated cases, and he lived his life with integrity, kindness, and service.

Like many, I was first introduced to Charles when I was in law school, though it was in a somewhat unusual way.  As you may know, Charles and Anne lived for many years in a beautiful home on Irving Street in Cambridge, just east of the Harvard Law School campus.  What you likely did not know was that they also frequently leased the top floor of their home as an apartment, often to law students and their spouses.  When I heard through a friend that Professor Fried's apartment was coming open, I reached out -- and Charles and Anne kindly invited my wife Karen and me over for tea.  The tea was ostensibly for them to show us the apartment but also -- quite plainly -- so they could assess whether we might be tolerable tenants and neighbors.

Whatever the criteria was, we apparently passed, because shortly thereafter Charles presented me with this short, rather chatty letter about the apartment.  It included lines like, "Since the house is a wooden house and we live in it too, we must all respect reasonable conditions regarding noise, the playing of music and the like," and he added, "For security reasons you will be sure that your door is locked at all times and we will do the same with ours."  It turned out that this very friendly letter was meant to be our lease.  Karen and I -- and all of my fellow law students -- were somewhat shocked that a law professor of all people would not use a form lease, would write a legal document without even a whiff of "legalese," and, heaven forbid, would hand over the keys to his home based on a piece of paper that did not include even a single citation to the Massachusetts General Laws!

And yet, welcoming us to live in his home with a letter that was chatty -- yet precisely written and legally ironclad -- was emblematic of the kind of lawyer that Charles was.  He got things right, and he conveyed his meaning precisely.  But he did so without ever having to sacrifice kindness, personality, and elegance.

In the years that we lived above Charles and Anne, his warmth was always on display.  One December, Karen and I hosted a holiday party for friends, mostly early-career lawyers like me, or early-career teachers like her.  We of course invited Charles and Anne, with every expectation that they would decline.  But to our great delight, they appeared, and Charles was, of course, the life of the party -- seamlessly meshing with, and wowing, a room of twenty somethings.  At one point I heard one of our friends say to another, "Dude, that guy is hilarious!" to which came the response, "Dude, 'that guy' was on the Massachusetts Supreme Judicial Court!"

I also had the distinct privilege of getting to know the kind of humor that Charles brought regularly to his legal practice.  His fellow Harvard Law School Professor Cass Sunstein summed it up quite well:  Charles had a "sense of mischief and delight."

Charles took the work of the law seriously, but he engaged in the practice of law with levity.  In the early 2000s, I was helping him with an article that he would later publish concerning Zelman v. Simmons-Harris,⁷ the Supreme Court's seminal establishment clause case concerning school vouchers.  He had written a section about the oral argument in that case, in which he described the late Senator Edward Kennedy entering the court room and prominently taking a seat in the front row center of the Court's visiting section just as argument began.  In the draft of his article, Charles left me a note on that page that read, "I was there.  I saw it.  How do you footnote that?" Meticulous about attribution, of course.

Well, after some back and forth with me and with his editors, Charles ultimately decided on an amusing solution.  And so, for all time, footnote 53 on page 174 of volume 116 of the Harvard Law Review will read, "I was there.  I saw it.  How do you footnote that?"⁸

Charles paired his humor, his warmth, and his elegance with an extraordinary dedication to the future of the legal profession.  Just as his advocacy and his intellect are the yardsticks against which lawyers and scholars measure themselves, his teaching is the standard against which the greatest are judged.

In late November 2023, Charles taught his final class before retirement, and, in a surprise tribute, dozens of law school faculty and former students appeared at the beginning of the class to honor and to thank him.  Charles was, of course, gracious as always and thankful for the tribute.  But he then quipped:  "As nice as this has been, I did prepare a lesson for today that I do intend on teaching."  Because of course, Charles's priority to the end was his students.

I often tell my own students that a career in the law is full of possibility and there are plenty of unhappy lawyers in the world -- so if what they are doing stops being fun, they should stop doing it and find something else.  I cannot think of anyone who self-evidently had more fun in the practice of law than Charles Fried.  He practiced law the way that he taught, and the way that he served on this court:  with wit, integrity, kindness, and joy.  His career and his outlook should be a model to members of the bar throughout the Commonwealth and across the nation.

I am therefore proud as a member of the bar of this court, along with Mr. Lee, to rise in enthusiastic support of the First Assistant Attorney General's motion.

Kristen Smith-Dayley, Esquire, addressed the court as follows:

Good afternoon, Justices, First Assistant Attorney General Moore, members of the Fried family, friends, and colleagues.

May it please the court:  My name is Kristen Smith-Dayley, and it is my honor to speak on behalf of those individuals who had the privilege of clerking for Justice Charles Fried during his tenure with the Massachusetts Supreme Judicial Court from 1995 to 1999.

One thing that people may find of interest is that because Justice Fried only served four terms with this court, he only selected his own law clerks for his last two years.  Phil Gordon and Bill Miles, who served as his clerks his first year, and Ethan Brown and I, who served during his second year, were all interviewed and hired by other justices of the court prior to Justice Fried's appointment.

By the time that I was interviewed, it was clear that Governor Bill Weld wanted Charles Fried to fill the vacancy on the bench, but I was interviewed for "Justice X."  When the position was offered to me, the offer came with the caveat that once appointed, Justice X would have the option to choose other clerks, if he wished, rather than go forward with the ones that had been selected for him.

It is for that reason that I was more than a little anxious when, a week or so after Justice Fried's appointment was official, I got a call from an administrative assistant at Harvard Law School asking if I could come by Professor Fried's office to meet with him.  Professor Fried had been my constitutional law professor the year before, and we were all very aware of his impressive legal pedigree, which famously included clerking for Justice Harlan and serving as Solicitor General of the United States.

Knowing that Justice Fried could choose his clerks from any number of stellar candidates, I steeled myself for a polite letdown as I walked to the campus and entered his office with no small bit of "fear and trembling."  When Professor Fried stood up from his desk with an enormous smile, gestured for me to sit down, and exclaimed, "So you're my clerk!" it caught me so completely off guard that I had to stop for a moment to hear what he'd said, so I could say, "Yes.  Yes, I am."

Throughout these remarks, I interchangeably refer to Justice Fried as "Professor Fried" and even as "Charles."  It is not a matter of disrespect, but rather an acknowledgement of the various roles that Justice Fried played throughout my life.  Justice Fried was also Professor Fried, and he was the consummate teacher in every aspect of his life.  In the years after my clerkship, he became Charles, a beloved friend, trusted mentor, and unfailing cheerleader –- one I always felt blessed and privileged to learn from.

I took the time to share my experience of being "hired" by Justice Fried because it is emblematic of who he was and is.  If you focused on his credentials, it was easy to be intimidated.  But if you took the opportunity to speak with the man, the things that impressed you beyond his piercing intellect and his quick wit were his incredible warmth, his joy for life, his boundless curiosity, and that irrepressible smile.

In corresponding with Justice Fried's other clerks, it was clear that we all had similar experiences.  Justice Fried is famous for his deep thoughtfulness and his ability to get to the heart of the matter, and I believe that innate intelligence sprang from his desire to learn everything about everything!  As his clerk, Bill Miles, recalled, "He was curious about every case we worked on, every detail of every case, why we thought what we thought, our families, our lives, and everything else that was going on at work, or in the news, or in a book we were reading.  We had to be on our toes all the time!"

There is nothing Justice Fried loved more than exploring ideas with people.  Phil Gordon, another of his clerks, observed that while he and Justice Fried came from very different backgrounds, with very different views and very different opinions, Justice Fried valued and cherished those differences, and they would spend long periods sitting together while Justice Fried worked through his thoughts on a particular case.  He had a deep commitment and abiding goal to "get it right."  "While I often left his office convinced by his logic," Phil said, "he definitely changed his position on a case if your logic was sound and your perspective and argument were particularly good."

As a nonjudicial example of Justice Fried's curiosity about all things, I remember a visit to his Harvard Law School office several years after my clerkship.  He asked about my oldest daughter, who was then two years old, and I mentioned that we had been helping her to use our computer because she did not at that time have the dexterity to use a pencil, but she could "hunt and peck" on a keyboard and spell out words.  Charles was fascinated and asked me several questions about this.  I am not taking any credit, but I do find it interesting that he set up his grandson (of a similar age as my daughter) with a computer at right about that time!

As the Vice Dean of Library and Information Services at Harvard Law School, Jonathan Zittrain, has said, "Charles Fried was both deeply serious and deeply mischievous.  He loved playing with ideas while also cognizant of real-world stakes.  He was both admirably consistent in his principles while ready to change his mind as new facts arose and his perspective grew and developed."

Even as his health had a tendency to betray him, I believe it was Justice Fried's openness to the world and curiosity about new ideas that kept him perpetually young in heart and in thinking.  In a day when people seem to be admired for "doubling down" on their opinions, whether warranted or not, I have always had immense respect for Justice Fried's openness to change his mind and adjust his position.

And yet, what I most appreciate about Justice Fried is that while he always welcomed the opportunity to see things from a different perspective, he never -- never -- backed down from his principles.  He was unflinching in his integrity.

As has already been noted, Justice Fried was born in Prague in 1935.  His father was an industrialist and a "Czech patriot," but as Jews they found themselves forced to flee Czechoslovakia in 1939.  Justice Fried believed fiercely in the principles on which the United States was founded, and he refused to sit back in silence when he saw something that threatened our morality as a nation, our humanity, or our freedoms, even when his convictions challenged those in power.  When the norms of American politics and our public dialogue began veering sharply in 2016, I was grateful and steadied every time I heard Charles's voice speaking out in an interview on National Public Radio or in an "op-ed."  He was one of the original founders of the Society for the Rule of Law, a nonpartisan group formed to protect the Constitution and American institutions against the critical threats they face.

The book Because It Is Wrong was coauthored by Justice Fried and his son, Dr. Gregory Fried, to examine the use of torture and the incursion on privacy under the George W. Bush administration.  In its preface, both Frieds wrote:

"We . . . believe that the founding philosophy of our republic, with its insistence on inalienable rights and sacred duty, is grounded in deontological principles, in particular, the respect for the human being as having a liberty and a dignity that must not be violated by states or individuals, at least not without cause, and even then, only within limits. . . .  [W]e must not allow . . . inertia . . . to prevent us from confronting what we are doing and becoming, . . . [for] in the end, in a democracy, that is all of us, and so we must take responsibility for what we now do and become as a nation."⁹

About a decade ago, I began using my law license to represent and assist refugees, asylum seekers, and others who have been forcibly displaced from their home countries.  Whenever I had the opportunity to spend time with Charles, he would ask me probing questions about this work.  Sometimes I felt discouraged and weighed down, and other times I felt an urgent need to do more.  Every time he encouraged me, expressed confidence in my abilities, and would cheer me on by saying, "It's God's work."  I always left those encounters feeling buoyed and supported, uplifted, inspired, and ready to take on more.  I sincerely wish we could have one of those conversations today.

Once you were in Justice Fried's life, you were always welcome.  Amazingly, both he and his wonderful and equally matched wife, Anne, made you feel like they were the ones delighted to be a part of your life.

Bill Miles, one of Justice Fried's original clerks, asked Justice Fried if he would officiate at his marriage.  Because the wedding was to take place in Rhode Island, a special law had to be passed by the Legislature to make this possible –- something that tickled Justice Fried.  As fate would have it, Hurricane Edward hit the Rhode Island coast on the appointed day –- guests were bailing, beaches were flooding, and high winds prevented anybody from setting up the wedding tent.  Nevertheless, Bill and his wife Pam were able to stand in front of a beaming Justice Fried, who proceeded to marry them as the rain poured down.

I passed the California bar exam during my clerkship, and I wanted Justice Fried to be the one to admit me to the bar.  Unfortunately, days before I was to move to the West Coast, he was hospitalized.  This would not deter him, and I was sworn into the California bar from his hospital bed.  Minor adversities and inconveniences never stood a chance in front of Justice Fried.

For years I have said that the only person I have ever described with the adjective "princely" is Charles Fried.  It is the way he treated everyone -- everyone.  It is the way he looked for and found the best in every person he encountered and every opportunity that presented itself.  It was the way he carried himself, his thoughtfulness, and the way he made you feel when you were with him.

I was returning from a trip in Kansas City last January where I'd been meeting with refugees and refugee settlement agencies when I received a text from a friend and law professor, expressing her condolences that Charles had passed.  I was crushed.  And I felt -- and still feel -- that the world is a little darker without Charles's effervescent presence and light.

That being said, it is safe to say -- on behalf of all of Justice Fried's clerks -- that we are forever grateful for the opportunity we had to work so closely with him during his time at the Massachusetts Supreme Judicial Court.  He made us better, and it is impossible to think of him without smiling.  So, with that, I'll simply borrow from Shakespeare and say, "'Good night, sweet prince,' and thank you."¹⁰

Justice Kafker responded for the court as follows:

Chief Justice Budd and members of the Supreme Judicial Court and Appeals Court; Trial Court luminaries; First Assistant Attorney General Patrick Moore; Attorneys Lee, Tompros, and Smith-Dayley; friends and family of Justice Fried; members of the Harvard faculty and the bar; and guests, it is my great honor to speak on behalf of the court to celebrate the legacy of the distinguished appellate advocate, scholar, and jurist Charles Fried.

My first encounter with Charles Fried was not in person, but with his book, Contract as Promise.  Slim and elegant like its author, it's a superb read.  As a law student at the University of Chicago, I was taught contracts by a completely incomprehensible Englishman who took pleasure in baffling us.  When I came across Contract as Promise in a bookstore, I rushed home to read it. When I was done, all I could say was, "Eureka!  This area of the law actually makes sense and is quite fascinating."  I keep it in my office, and I consult it whenever a difficult contract issue comes to the court and stumps me.  My only regret was I never had Professor Fried in law school.

It was not until 1995, when Governor Weld nominated him to the SJC, that I actually met Professor Fried in person.  Attorney Lee, reinforcements were actually brought in for you.  He was being prepared for his confirmation hearing before the Governor's Council, and as a veteran of the Governor's legal office familiar with the confirmation process, I was invited to sit in on one of the prep sessions.  It was being conducted by Brackett Denniston, the Governor's chief legal counsel, and my once and future colleague David Lowy.  I originally thought there was going to be a culture clash between a Harvard don and the Governor's Council.  But he was so charming and affable.  I thought this was all going to go very smoothly, and I left reassured.

Of course, I was a little naïve.  The confirmation hearings lasted for days, and more than fifty witnesses testified, including, I suspect, a number of you in the audience.  When the time came for a vote, the Governor's Council split four to four, and the deciding vote in Fried's favor had to be cast by Lieutenant Governor Paul Cellucci.¹¹

Fortunately for the SJC, he was confirmed.  His presence was immediately felt in oral argument. This was not at all surprising because he was a mesmerizing oral advocate himself.  Before his arrival, as Attorney Lee put it, the Supreme Judicial Court could on occasion be a cold rather than a hot bench, sometimes asking only a few questions at oral argument.  Justice Fried, and his new colleagues, including then Justice and later Chief Justice Margaret Marshall, changed that for good.  The briefs were now devoured, the questions were more specific and targeted, and the argument became more interesting for the lawyers and the justices as well.  Justice Fried was transformative in this respect, and his legacy continues to this day. The SJC is known as a very well prepared, very, very, very, very, very hot court.

His judicial writings of course were hugely influential.  During his tenure as an Associate Justice of the SJC from September 1995 through June 1999, Justice Fried sat on 593 cases that resulted in full opinions.  He authored 115 majority opinions, six concurrences, and five dissents.

He wrote on a wide range of topics for the court, including significant and frequently cited opinions concerning age discrimination under G. L. c. 151B;¹² burdens of proof in insurance actions, and damages for unfair insurance claim settlement practices;¹³ tort claim immunity questions (I notice Appeals Court Justice William Meade in the audience -- he was the advocate on some of those cases);¹⁴ jury instructions on self-defense;¹⁵ and famously confrontation clause issues and the need for finality in the Amirault child sex abuse case.¹⁶  He approached each case with a wide-open, razor-sharp mind.  Indeed, he delivered on the promise he made at his confirmation hearing, "To serve the law as a judge is to come to the bench with no project, but only to listen to the arguments in each case as it comes before the court, and to apply the law wisely and humanely."¹⁷  He displayed such wisdom and humanity in every case he issued.

I will start where I began earlier, with contracts.  Justice Fried's scholarly interest in contract law and his analytical clarity are both evident in his often-cited opinion for the court in Lafayette Place Assocs. v. Boston Redev. Auth., which concerned a complex deal to redevelop an area downtown, very close to here.  One of the questions raised was whether the parties had entered into a binding contract, when certain issues were left unresolved due to future contingencies.  Justice Fried used the occasion to articulate important governing principles.  An agreement to agree is not a contract, but he wrote, "Rules of contract must not preclude parties from binding themselves in the face of uncertainty.  If parties specify formulae and procedures that, although contingent on future events, provide mechanisms to narrow present uncertainties to rights and obligations, their agreement is binding."¹⁸

Although he is perhaps most celebrated as a distinguished Solicitor General, that is, as a defender of the government, his fairness and open mindedness is revealed by a number of ground-breaking opinions in which he carefully defended individual rights against government overreaching. For example, one of Justice Fried's earliest opinions for the court, Hosford v. School Comm. of Sandwich, concerned a special needs teacher who had been suspended and not reappointed by the local school superintendent because she had used vulgar language in her classroom.¹⁹  Justice Fried started his analysis from the premise that "expression in the academic context fully implicates free speech concerns," although he also recognized that the "context may also authorize regulations that would not be accepted" in other settings.²⁰  He then noted that the teacher's speech did not violate any such regulations because she had been engaging her students in a frank discussion of vile words in an effort to admonish them not to use such language.  Given those circumstances, he wrote, "Common sense compels the conclusion that there was nothing amiss about that discussion," and disciplining the teacher for it therefore violated her constitutional right of free speech.²¹

He was not only erudite, but extraordinarily witty as well.  On more than one occasion, when legal arguments started to reach the point of diminishing returns, he suggested that they were "explaining the obscure by the more obscure," a translation he gave of the old Latin phrase "obscurum per obscurius."²²  Having not attended Jesuit school or Jesuit college, like Justice Georges, I am not sure my Latin is correct.

In Gonsalves, the majority held that, under art. 14 of our Declaration of Rights, a police officer must have a reasonable belief that an officer's safety, or the safety of others, is in danger to justify ordering a driver or passengers out of a motor vehicle during a routine traffic stop.²³  And since that standard was not met in that case, the court affirmed suppression of the evidence at issue.²⁴  In that case, the majority decided to provide greater protection for criminal defendants under the State Constitution than the United States Supreme Court provided criminal defendants under the Federal Constitution.

In a thoughtful dissent, Justice Fried argued that police officers should be permitted to order drivers and passengers to exit a vehicle as a matter of course, in accord with Supreme Court precedent interpreting the Fourth Amendment to the United States Constitution.²⁵  He noted that the Supreme Court had concluded, "Measured against the danger to the officer, . . . the inconvenience to the motorist was minimal," and such a "simple bright-line rule" would be easier for police officers and judges to understand and administer.²⁶  Although I admit that I thought the majority was correct and Justice Fried was wrong, I considered Justice Fried's dissent to be brilliant and have had my students read it for classes I taught on State constitutional law -- a class that is now taught by Attorney Moore and Appeals Court Justice Eric Neyman.

Over the course of its long history, the SJC has been fortunate to have a number of justices who were truly scholar-jurists. Their brilliance and erudition illuminate their decision-making.  Oliver Wendell Holmes, Jr., is perhaps the most famous example.  Other more recent scholar-jurists, such as Chief Justices Herbert Wilkins, Paul Liacos, and Roderick Ireland and Associate Justice Benjamin Kaplan, have also brought the great scholarly tradition to this court.  Their reflection informed by their research and scholarship have refined their work as justices.  Charles Fried clearly fits within this great tradition.  His questioning elevated the already high discourse in this court room.  His open-minded, wise, and humane approach to each case has provided a model for the rest of us to follow.  And his decisions will continue to enlighten future generations of lawyers and jurists.

For all of these reasons, on behalf of the Justices of the Supreme Judicial Court, the motion of the Attorney General is allowed, and this Memorial is to be spread on the records of this court.

Footnotes

1. See Alliance, AFSCME/SEIU, AFL-CIO v. Commonwealth, 427 Mass. 546 (1998); Alliance, AFSCME/SEIU, AFL-CIO v. Commonwealth, 425 Mass. 534 (1997).
2. Commonwealth v. Gonsalves, 429 Mass. 658 (1999).
3. Id. at 681 (Fried, J., dissenting).
4. Poe v. Ullman, 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).
5. Mistretta v. United States, 488 U.S. 361 (1989).
6. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
7. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
8. Comment, Five to Four:  Reflections on the School Voucher Case, 116 Harv. L. Rev. 163, 174 n.53 (2002).
9. C. Fried & G. Fried, Because It Is Wrong:  Torture, Privacy and Presidential Power in the Age of Terror 15-17 (2010).
10. William Shakespeare, Hamlet act 5, scene 2.
11. See Overholt, Liberals Attack SJC Nominee:  Law Professor Fried Faces Opposition, Harvard Crimson, June 27, 1995; Overholt, State Delays Hearings on Fried Confirmation:  SJC Nominee Won't Face Vote Until August, Harvard Crimson, June 30, 1995; Overholt, Controversial Prof. Fried Faces Battle for SJC Seat:  Dozens Testify at Nomination Hearings, Harvard Crimson, Aug. 18, 1995; Braunstein & Pravda, Fried Confirmed to Court:  Governor's Council Narrowly Approved Weld's Choice, Harvard Crimson, Sept. 13, 1995.
12. MacCormack v. Boston Edison Co., 423 Mass. 652 (1996).
13. See Clegg v. Butler, 424 Mass. 413 (1997); Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 (1997).
14. See Brum v. Dartmouth, 428 Mass. 684 (1999); Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass. 509 (1998), cert. denied, 525 U.S. 1177 (1999).
15. Commonwealth v. Pike, 428 Mass. 393 (1998).
16. Commonwealth v. Amirault, 424 Mass. 618 (1997).
17. Braunstein & Pravda, supra.
18. Lafayette Place Assocs., 427 Mass. at 518.
19. Hosford v. School Comm. of Sandwich, 421 Mass. 708 (1996).
20. Id. at 713.
21. Id. at 715.
22. See Mendonza v. Commonwealth, 423 Mass. 771, 779 (1996); Strom v. American Honda Motor Co., 423 Mass. 330, 341 (1996); Santos v. Kim, 429 Mass. 130, 133 (1999).
23. Gonsalves, 429 Mass. at 662-663.
24. Id. at 668-669.
25. Id. at 672-673 (Fried, J., dissenting).
26. Id. at 676 (Fried, J., dissenting).