Pam Karlan

  • April 12, 2012

    by Jeremy Leaming

    The nation’s growing income inequality, among other issues concerning the economy, should play a significant role in the presidential election, but writing for The Nation, Ari Berman delves into why the Supreme Court should also be “a major issue in November.”

    The Supreme Court is simply not balanced. The court has been shoved far to the right. Berman cites Nate Silver’s reporting for The New York Times on a recent study that “finds that the current court is the most conservative since at least the 1930s.”

    The Martin-Quinn Scores, which Silver rendered in two charts, also “imply that, on the basis of its median justice, the current court is farther from the ideological center than any recent court. For instance, it is farther from the center than the liberal courts of the late 1960s that were under Chief Justice Earl Warren.”

    And beyond deciding whether health care reform will stand or fall, the Roberts Court is likely to consider a slew of major issues in the “not-so-distant future,” Berman writes. Some of these concerns include affirmative action policy, voting rights, marriage equality and reproductive rights. (As Berman notes, Republican state lawmakers have passed numerous onerous restrictions on reproductive rights over the last few years.)

    The right already gets it. Leaders of the conservative movement have obsessed over the make-up the federal courts and the high court in particular, for decades. And those leaders haven’t stopped obsessing. Berman notes that NRA leader Wayne LaPierre declared, in hyperbolic fashion, at this year’s Conservative Political Action Committee, “If Obama wins re-election, he will likely appoint one – and perhaps three – more Supreme Court justices. It’ll be the end of our freedom forever.”

  • July 13, 2010

    At a plenary panel discussion called "Congress and the Courts," at the 2010 ACS National Convention, constitutional law expert and ACS Board member Pamela S. Karlan provided a succinct, cogent explanation of the importance of an intellectually strong and independent judiciary and a federal bench filled with judges who understand the Constitution's values and their role in ensuring enforcement of constitutional rights. Karlan said the Constitution's principles "were intended to endure for a very long period of time" and be applicable for a nation that would eventually emerge. Karlan also described Congress' role in ensuring the constitutional guarantees through the Reconstruction Amendments and the vital role that U.S. District Courts and federal appeals courts play in protecting and ensuring applicability of constitutional principles.

    Video of Karlan's comments are below or they can be downloaded as a podcast here. The entire plenary panel discussion can be watched here.

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  • June 20, 2010

    The conservative wing of the Supreme Court has actively, and successfully, overturned and narrowed laws meant to protect workers' rights, minority voting rights, access to courts, as well as taking and construing cases to advance corporate interests, maintained several panelists at the final plenary panel of the 2010 ACS National Convention.

    Moderator Linda Greenhouse, a senior research scholar at Yale Law School and former Supreme Court correspondent for The New York Times, asked constitutional law expert Pamela S. Karlan to explain the judiciary's role among the three branches of federal government.

    Karlan, a Stanford Law School professor, said, "The Constitution is written in very broad language about very broad principles that were intended to endure for a long period of time and to be applicable to a nation that the framers knew would emerge, but they didn't know in what form. That's why the most important parts of the Constitution are written in broad and sweeping language."

    But at the second framing of the Reconstruction Amendments - the 13th, 14th and 15th Amendments - the framers gave "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection clause, and the due process clause," Karlan said. "And they gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off of the fumes of Brown against Board of Education, that's why it has such power in our country."

    But, at the middle of Reconstruction, the high court, Karlan noted was "living off the fumes of Dred Scott." She said, "the Supreme Court was not the place you went to get equality, you went to the legislature."

    "So the Constitution's broad sweeping powers are given their real-life meaning by Congress. If you ask where did we get equality, it's from the Civil Rights Act of 1964. If you ask ‘how is that the 15th Amendment actually enfranchised African Americans?' More African Americans were enfranchised in the first two years after the passage of the Voting Rights Act of 1965 than in the entire prior century through judicial enforcement alone. And that's because Congress banned literacy tests [for voting] when the Supreme Court wouldn't. Congress gave people the right to register, when the Courts didn't."

    Karlan noted that it is just as important, if not more so, to confirm lower court judges who understand the role of the judiciary, the Constitution and are taking appropriate action. As she noted, it is not useful to pass health care reform law only to then have it hobbled by conservative jurists or to pass environmental regulations that are subsequently gutted by similar judges.

    Karlan co-authored a book published by ACS called Keeping Faith with the Constitution, which takes a critical look at the cramped constitutional interpretation promoted by many conservative jurists and lays out an alternative one that promotes fidelity to the Constitution. 

    Congressman Jerrold Nadler (D-N.Y.) knocked the Roberts Court for its "campaign to shut the door on litigants." I've introduced a bill, Nadler said, to try to restore the pleading standards, but the business community and its lobbyists, such as the Chamber of Commerce, are targeting the bill, the Open Access to Courts Act. "I don't know if we can bring that to a vote this year or not," he said.

    Nadler continued, that the Roberts Court, contrary to Chief Judge Roberts' confirmation testimony, "has been a very activist court."

    Someone suggested a few years ago that maybe we start inserting into our legislation the words, "this time we mean it," Nadler added.

    John Payton, head of the NAACP Legal Defense and Educational Fund, Inc., said that Congress should take action to "shore up the Voting Rights Act," in light of the high court's recent 5-4 ruling that suggested the conservative wing, led by Chief Justice John Roberts' was seeking the necessary fifth vote to gut Sec. 5 of the Voting Rights Act, which requires a number of states and localities with a history of voting discrimination to get federal preclearance before making any change to voting practices or procedures. But, Payton said he didn't believe there was a "chance that Congress could take any action on the Voting Rights or any other major piece of Civil Rights legislation in this poisoned atmosphere."

    Video of the Congress and the Courts plenary:

  • September 30, 2009

    Jazz, the Constitution and baseball may be our country's most memorable contributions to posterity, as observed by Professor Pam Karlan at the 2009 ACS National Convention. [Video, beginning around 11:50.] Two of these contributions were combined prominently with Justice Sonia Sotomayor throwing out the first pitch at a recent Yankees' game.

    Perhaps almost as prominently, members of the ACS network in and around Washington, D.C. attended the Nationals' game against the Atlanta Braves last Friday. Evidence of the event is visible below, but we can neither confirm nor deny the Nationals' four-to-one loss.

  • May 22, 2009

    The White House has officially announced its intent to nominate Prof. Christopher Schroeder (right) of Duke University School of Law to the head the Justice Department's Office of Legal Policy.

    "In his new role, Schroeder would be a leading voice on legislation related to law enforcement and the federal court system, and on nominations for the federal judiciary," according to The Blog of the Legal Times. "If confirmed by the Senate, he would be the chief policy advisor to Attorney General Eric Holder Jr. and Deputy Attorney General David Ogden."