Pamela S. Karlan

  • September 14, 2017
    Guest Post

    by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School

    *This piece was originally posted on Stanford Law School Blog

    Edie Windsor had a signature set of pearls and a signature set of advice: “Don’t postpone joy” and “Keep it hot.” In the five years I knew her, no one followed that advice more resolutely.

    I began working on Edie’s challenge to the federal Defense of Marriage Act (DOMA) on July 4, 2012, when Robbie Kaplan, who was representing her, sent me an email asking if I was interested in helping out. We often say about the Stanford Supreme Court Litigation Clinic (which I co-direct with Jeff Fisher) that we serve as local counsel, only our locale is the U.S. Supreme Court. Robbie brought me in to help with a petition for cert. before judgment; Edie was 83 years old and there was then no telling how long proceedings in the Second Circuit might take. (As it turned out, the Second Circuit issued a ruling in our favor with unusual dispatch.)

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Pamela S. Karlan, ACS Board Member and Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director of the Supreme Court Litigation Clinic, Stanford Law School

    “Always it is by bridges that we live,” the poet Philip Larkin wrote. One of the problems with the way we have tried to build a more just constitutional law is our failure to draw lessons across constitutional subfields – to build constitutional bridges.

    Several years ago, I published an article in the Indiana Law Journal called “Taking Politics Religiously: How Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy.” It is an example of what I mean by building constitutional bridges: I used themes developed in the religion clause cases – like the “radical” idea that “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct,” that the Constitution should combat the creation of an outsider class and that it should prevent capture and exploitation of the machinery of government – to suggest how we ought to think about political party regulation, redistricting and campaign finance.

    Now, I want to begin a conversation about two areas of law that might seem rather disconnected from one another: voting rights and reproductive justice. I often joke about that connection: politics, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology and often a need – as the Supreme Court put it in a redistricting case – to “pull” and “haul” rather indelicately at the very end. And of course, it often involves somebody getting screwed.

  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”  

     

  • January 10, 2012

    by Jeremy Leaming

    During yesterday’s oral argument before the U.S. Supreme Court over legal challenges to recently redrawn electoral maps, the justices, according to Adam Liptak, appeared “frustrated” as they grappled with how to resolve the matter, which could have a major impact on which party controls the House of Representatives.

    “The justices,” Liptak, The New York Times Supreme Court correspondent, wrote, “in essence must choose between two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.”

    Prompted by the 2010 census – which reported that Texas gained more than 4 million new residents, most of them Latinos – the Republican-controlled Texas Legislature created new electoral maps that public interest groups criticized as failing to reflect minority population growth. Texas, because of its history of discrimination against minority voters, is one of the states that must get “preclearance,” pursuant to Section 5 of the Voting Rights Act, from the Department of Justice or a federal court before any electoral changes can take effect. While Texas officials sought preclearance from a federal court in Washington, a federal court in San Antonio created its own electoral maps as a substitute, which state officials challenged. That three-judge court in San Antonio found that the Legislature’s redistricting sharply reduced the number of minority voting opportunities.

    During oral argument, Justice Sonia Sotomayor suggested the Texas Legislature’s maps could not be used in the state’s primaries, because the maps had not been approved pursuant to Section 5 of the Voting Rights Act.

    “I don’t see how we can give deference to an enacted new map,” she said, “if Section 5 says don’t give it effect until it’s been precleared.”

  • December 20, 2011

    by Jeremy Leaming

    The dominance of a conservative legal orthodoxy might not be as solid as portrayed by several panelists at a recent Brookings Institution event about the “Conservative Legal Movement and the Future of Liberal Jurisprudence.”

    Pamela S. Karlan, a distinguished law professor at Stanford Law School, explained why many perceive the conservative legal movement as dominating the narrative of the Constitution, while William E. Forbath, a distinguished law professor and professor of history at the University of Texas, focused on sharpening a liberal response to the conservatives’ narrative of the Constitution primarily meant to protect individual interests, such as private property. Forbath also examined the Constitution’s promise of economic security and equality.

    Karlan (pictured), an ACS Board member, took exception with the overall tilt of the Brookings event that conservative legal activists have outmaneuvered liberals in advancing legal theories. Karlan, however, also leveled criticism of liberals who are cowed into silence or into dubbing themselves progressives.

    But first Karlan noted the circumstances, with which conservatives have seized upon to advance their legal precepts.

    “Today it is tempting to tell a story about the rise of the conservative legal movement as the inevitable consequence of a combination of strong ideas pressed by charismatic public figures, backed by tremendous resources,” Karlan said. “To be sure, conservatives have very skillfully played the hand that they held. But contingency has played a major role too.

    “If you go to the Brookings’ website to look for its description of the conference today, you’ll see the description that says ‘the conservative legal movement has shown remarkable success at defining the terms of the debate over jurisprudence, while various visions of liberal theories of law that confront conservative orthodoxy have struggled to gain currency in the political sphere. Conservative legal theorists have coalesced around a relatively compact and politically effective set of ideas while their liberal critics have offered a diverse series of responses.”

    Continuing, Karlan said, “Now if some other public policy organization were to have held a conference in say 1968, it could have taken the same paragraph, swapped the words ‘conservative’ and ‘liberal’ and held a parallel discussion to the one were going to be holding today.”

    Conservatives Karlan maintained, “Have been as lucky as they’ve been smart.” A few tweaks to history, she said, and the landscape would likely look really different.