Faculty Bibliography
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Expand the Court now.
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This Foreword examines the recent degradation of American democracy, seeks explanations for it, and canvasses the Supreme Court’s contribution to it. Section IA examines the “autocrats’ playbook” to establish a baseline against which to evaluate recent American developments. Part IB considers President Trump’s authoritarian bent. Part IC describes the measures that Republicans have enacted in states to entrench themselves in power, including partisan gerrymandering, voter identification laws, purges of the voter rolls, measures to suppress the youth vote, circumvention of inconvenient voter initiatives, and even the delay and cancellation of elections. Part ID considers Republicans’ complicity with Trump, which has escalated over the course of his presidency, to the point that they mostly will not criticize him for obstructing the investigation into Russian interference with the 2016 presidential election, pressuring the president of Ukraine to dig up dirt on Joe Biden, politicizing law enforcement and intelligence, or catastrophically mishandling the federal government’s response to the coronavirus pandemic. Part II offers explanations for the nation’s current political predicament. Groups that fear becoming perpetual political losers may abandon their commitment to democracy, just as white southerners did in the antebellum period. Part IIA, “The Disappearing White Majority,” examines the role of demographic change, immigration, and increasing racial resentment in growing disaffection with democracy. Part IIB, “The Disappearing Christian Majority,” describes how the gradual collapse of the idea of the American “Christian nation” has contributed to such disaffection. Part IIC, “The Rise of the Neo-Ayn Randians,” considers how radical libertarians, never enthusiastic about democracy because of the threat it posed to property rights, gradually gained ideological and political influence since the 1960s and came to dominate the Republican Party. Part IID, “Economic Inequality,” explores how working-class Americans, whose economic position stopped improving about forty years ago, have become disaffected with a democratic political system that no longer works for them. Part IIE explains how these other developments, refracted through American political and media ecosystems, have produced a politics of asymmetric polarization, hardball, and negative partisanship, which created a Republican Party no longer strongly committed to democracy and prepared to defend at all costs a president with a strong authoritarian bent. Part III examines the Supreme Court’s contributions to the degradation of American democracy. The Court’s conservatives abrogated the preclearance provision of the Voting Rights Act, enabling Republican governments in the South to enact voting restrictions enabling the party to maintain political power in rapidly diversifying states such as Florida, Georgia, North Carolina, and Texas. The Court’s Republican Justices have also upheld stringent voter-identification laws and purges of the voter rolls, both of which purport to address the largely non-existent problem of voter fraud, while disfranchising Democratic-leaning constituencies, such as persons of color, the poor, and the young. Most recently, the conservative Justices have declined to intervene against partisan gerrymandering, which has mostly benefitted Republicans in recent years. The Court’s campaign finance decisions, dating back to 1976 but becoming increasingly extreme over the last decade, have created a political system dominated by money, which advantages Republicans who disproportionately benefit from the political spending of the most affluent Americans. In Bush v. Gore (2000), the Court helped to elect a Republican president, who appointed two conservative Justices, without whose participation none of the recent rulings undermining democracy would have been possible. In 2019, the conservative Justices fell one vote short of enabling Republicans to entrench themselves in power for another decade by ensuring that persons of color would be undercounted in the 2020 census. Only a last-minute change of heart by the Chief Justice stymied that effort. The conservative justices have also abjured the Court’s traditional role in protecting vulnerable racial and religious minorities from discrimination by validating the Trump administration’s thinly veiled ban on Muslim travel to the United States. Part III concludes by discussing how constitutional interpretation works in general and why the Republican majority’s rulings on issues of democratic governance nearly always benefit the Republican Party. Part IV briefly considers how to bolster American democracy. The best way to stem the degradation of democracy is to entrench democracy. Yet, this is an uphill battle, both because political actors who benefit from the status quo are incentivized to resist changes to it and because various structural features of the American political system advantage Republicans. To entrench democracy, Democrats would need to overcome simultaneously the disadvantages of partisan gerrymandering and geographic clustering in state legislatures and the House of Representatives, extreme malapportionment in the Senate, the vagaries and malapportionment of the electoral college, and the flood of unregulated political spending that the Court has unleashed. Even then, Republican Justices might invalidate democracy-entrenching measures. Moreover, some such measures, such as campaign-finance reform, may require a constitutional amendment, given the conservative Justices’ strained interpretations of the First Amendment. The Court has a Republican majority today only because Senate Majority Leader Mitch McConnell stole a Supreme Court seat from Democrats in 2016, when he refused to permit President Obama to fill the vacancy left by the death of Justice Antonin Scalia. The entrenchment of democracy will probably require Democrats to undo that theft. A brief Conclusion examines competing reasons to be pessimistic and optimistic regarding prospects for stemming the degradation of American democracy, and reflects on the deeply contingent nature of this story’s outcome.
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Michael J. Klarman, Court, Congress, and Civil Rights, in Congress & the Constitution 173 (Neal Devins, Keith Whittington & Mark A. Graber, eds., 2020).
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This article, which draws upon material from my book, "The Framers’ Coup: The Making of the United States Constitution" (Oxford University Press 2016), investigates how and why the Philadelphia Convention of 1787 wrote a constitution that was far more nationalizing and antipopulist than most Americans probably anticipated or desired. The article also seeks to shed light on how the Federalists managed to convince the nation, through a reasonably democratic ratifying process, to approve a constitution that was, in significant part, designed to reduce popular influence upon the federal government.
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Regardless of whether it’s renamed for McCain, Russell’s name should not be on it.
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"Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself. … Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories. … The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests. Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since"-- Publisher's website.
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Klarman traces this same pattern--court victory followed by dramatic backlash--through cases in Vermont, California, and Iowa, taking the story right up to the present.
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Profound changes in American racial attitudes and practices occurred during the second half of the twentieth century. This chapter examines the social and political conditions that enabled the modern civil rights revolution and situates the Court's racial rulings in their historical context. Several decisions in the 1960s expanded the concept of state action, enabling the justices to strike at instances of race discrimination that previously were thought beyond the reach of the Fourteenth Amendment. The Court began to revolutionize First Amendment doctrine, criminal procedure, the law of federal courts, and habeas corpus rules, based largely on the justices' conviction that Southern states could not be trusted to deal fairly with matters involving race. Changing social and political circumstances halted civil rights progress just as the movement reached its zenith. As civil rights leaders shifted their focus to the North and broadened their objectives to include economic redistribution, many previously sympathetic whites became alienated from the movement.
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Unfinished Business offers an invaluable, succinct account of racial equality and civil rights throughout American history.
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This chapter assesses how the forces of massive resistance overwhelmed more liberal opinion on racial integration. It stresses that those white southerners who were opposed to the Brown decision were more politically committed than were those who accepted or supported it. It adds that die-hard segregationists used the apparatus of local and state government to destroy political dissent among the southern whites. It highlights the importance of legislative malapportionment, which provided disproportionate political power to rural districts where white racism was most virulent.
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Michael J. Klarman, Brown v. Board of Education: Law or Politics? (U. Va. Sch. of Law, Pub. Res. Paper No. 02-11, Dec. 2002).
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This essay analyzes the justices' internal deliberations in Brown v. Board of Education, based on the conference notes, with the goal of explaining why they found the case so hard. (At the first conference discussion, in December 1952, it was not obvious whether a majority existed to overrule Plessy v. Ferguson). I argue that for several justices, most notably Frankfurter and Jackson, Brown presented a conflict between law (as they understood it) and politics. Though they thought racial segregation a clear moral evil, they did not believe it was unconstitutional according to the conventional sources of constitutional interpretation - text, original intent, precedent, custom. The essay also tries to explain how a closely divided Court became unanimous and why school segregation struck most justices as an obvious moral wrong at a time when the nation was divided down the middle.
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This essay addresses two questions regarding the relationship between judicial and legislative action on civil rights. First, what explains one branch sometimes being in front of the others on civil rights issues? This part of the essay canvasses the period from Reconstruction to the civil rights movement and offers some explanations for why, at different points in time, Congress was ahead of or behind the Court on civil rights. Second, what was the causal connection between Brown v. Board of Education and the landmark civil-rights legislation of the mid-1960s? This part of the essay canvasses several possible ways in which Brown advanced or retarded the civil rights movement, especially focusing on the decision's backlash effect on southern politics.
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This article considers the impact of Supreme Court criminal procedure decisions on the treatment of blacks by the southern criminal justice system. It considers decisions in the areas of coerced confessions, race discrimination in jury selection, the right to counsel, and the right against mob-dominated trials. The article finds that these Supreme Court rulings had almost no impact. Blacks continued to be almost entirely excluded from juries in criminal cases; law enforcement officers continued to beat black defendants into confessing; and court-appointed white lawyers turned in sham performances. The article also considers the indirect effects of these decisions and the litigation that produced them. Here, the rulings may have been more consequential, in terms of educating blacks about their rights, mobilizing social protest, facilitating NAACP branch-building and fund-raising, and instructing oblivious whites about the egregiousness of Jim Crow conditions. Finally, the article considers why Supreme Court criminal procedure rulings were so much less efficacious (for southern blacks) than contemporaneous Court decisions invalidating the white primary and mandating the admission of blacks to southern public universities.
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This Article considers the long-term implications of Bush v. Gore for the Court's institutional standing and legitimacy. First, the Article considers the possibility that the Court's legitimacy turns on the legal soundness of the reasoning of its opinions. If this is the case, I argue, the Court is in a lot of trouble, since few reputable lawyers will be convinced that the result was a product of anything but the conservative Justices' partisan preference for George W. Bush in the 2000 presidential election. Second, the Article considers the alternative (in my mind, more plausible) premise that history's verdict on a Supreme Court ruling depends more on whether public opinion ultimately supports the outcome than on the quality of the legal reasoning or the craftsmanship of the Court's opinion. The Article's strategy is to canvas some of the landmark decisions in American constitutional history ? Dred Scott v. Sandford, Brown v. Board of Education, Furman v. Georgia, Roe v. Wade, and others ? with the aim of deriving a list of factors that predict how particular rulings will affect the Court's reputation: the amount of opposition a decision generates, the intensity of opposition, perceptions of how efficacious a ruling is likely to be, the relative clout of constituencies supporting and opposing the decision, the continuing saliency of the issue adjudicated by the Court, shifts in public opinion regarding the issue resolved by the Court, the ability of the Justices to take advantage of subsequent opportunities to modulate their decision in light of hostile public opinion, and whether a particular decision is an isolated ruling or part of a "package" of controversial decisions. Finally, the Article considers how those variables apply to Bush v. Gore and predicts that the decision's long-term consequences for the Court's reputation are likely to be relatively insignificant, mainly because the underlying issue will rapidly become obsolete (unlike, say, the abortion or school prayer issues, which have remained controversial for over a quarter of a century).
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On this two hundredth anniversary of the ascension of John Marshall to the Chief Justiceship of the United States Supreme Court, it is appropriate that we take a revisionist look at some of the landmark decisions of the Court that he presided over for thirty-four years. Political scientists and legal scholars have written a great deal in recent years questioning conventional as-sumptions about the importance of Supreme Court decisions such as Brown v. Board of Education, Roe v. Wade, and Engel v. Vitale. Yet almost nothing has been written about the conse-quences of the "great" Marshall Court decisions. Scholars continue, almost universally, to assume that the old Marshall Court chestnuts---decisions such as Marbury v. Madison, McCulloch v. Maryland, and Dartmouth College v. Woodward---were of enormous significance to the history of the early republic. A closer look at these rulings in their historical context, however, suggests that such assumptions are in need of serious revision. While I do not mean to suggest that these famous Marshall Court decisions were completely inconsequential, the prevalent assumption that they fundamentally shaped the course of American national development is almost certainly wrong. This Article will reconsider the consequences of three categories of Marshall Court decisions. Part I will examine the most famous Marshall opinion of all, Marbury v. Madison, and will question the importance of its proclamation of the judicial review power. Part II will reevaluate the importance of McCulloch v. Maryland and Gibbons v. Ogden--decisions that approved extremely broad conceptions of national legislative power. Part III will turn to some of the famous Contract Clause decisions of the Marshall Court---specifically, Dartmouth College v. Woodward, Sturges v. Crowninshield, and Green v. Biddle---and will challenge the widespread assumption that they were instrumental to American economic development during the first half of the nineteenth century. Finally, Part IV will consider one way in which the Marshall Court did make a vital contribution to American history: It helped establish the Supreme Court as a significant, if not quite coequal, branch of the national government. This final Part will assess the extent to which Marshall and his colleagues were responsible for the Court's growing institutional stature and the extent to which this development was fortuitous. While I doubt this Article will conclusively resolve any of these issues, my goal is to prompt other scholars to reconsider prevalent assumptions about the importance of canonical Supreme Court rulings generally and the "great" Marshall Court decisions specifically.
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Political scientists and legal scholars have written a good deal in recent years on the consequences of Supreme Court decisions. Much of this scholarship has been skeptical of the capacity of courts to produce significant social change. Most notably, Professor Gerald Rosenberg has declared the notion that courts can reform society a "hollow hope." While much of my own scholarship has reached conclusions broadly similar to those of Professor Rosenberg, it is a mistake to conclude that Supreme Court decisions in the civil rights context never made much difference. The Court's most important white primary decision, Smith v. Allwright, inaugurated a political revolution in the urban South. This Article considers both the circumstances that enabled Smith to accomplish what it did and the limitations of that accomplishment. My goal is to shed light on the conditions that enable and disable Supreme Court decisions from effectuating significant social change. Part I summarizes the Supreme Court's three pre-Smith white primary decisions. Part II provides legal and political background to Smith v. Allwright and also describes the post-Smith history of the white primary. Part III, the core of the Article, describes the impact of Smith on southern black voter registration. Relying principally on archival material mined from the NAACP Papers, I describe how southern blacks and whites responded to Smith and identify the political and social conditions that enabled Smith to launch a revolution in black political participation in the urban South. This Part also examines the factors that largely nullified the impact of Smith in the rural South. The Conclusion addresses the question of why the Supreme Court's intervention in the white primary context was so much more immediately efficacious than were either its contemporaneous decisions involving criminal procedure issues affecting southern blacks or its slightly later ruling in Brown v. Board of Education.
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This article takes a close look at four of the landmark criminal procedure cases of the 1920s and 1930s--Moore v. Dempsey, Powell v. Alabama, Norris v. Alabama, and Brown v. Mississippi. The article claims that it was no fortuity that modern criminal procedure originated in cases involving southern black defendants. For the Supreme Court to assume the function of superintending the state criminal process required a departure from a century and a half of tradition and legal precedent, both grounded in federalism concerns. The Justices were willing to take that leap only in cases of flagrant injustice--cases that by the 1920s and 1930s arose mainly in the South and involved black defendants charged with serious interracial crimes, usually rape or murder. Part I makes three related points about these egregious exemplars of Jim Crow justice, which provided the occasion for the birth of modern criminal procedure. First, the southern state appellate courts and the United States Supreme Court were operating on the basis of different paradigms when they evaluated the fairness of these criminal trials. For the southern courts, the simple fact that these defendants enjoyed the formalities of a criminal trial, rather than being lynched, represented a significant advance over what likely would have transpired in the pre-World War I era. For the United States Supreme Court, on the other hand, criminal trials were supposed to be about adjudicating guilt or innocence, not simply avoiding a lynching. Second, because these southern criminal trials were so egregiously unfair, public opinion in the nation generally supported the Supreme Court's interventions. Thus, these early criminal procedure cases hardly represent the sort of countermajoritarian judicial decisionmaking one often associates with landmark criminal procedure decisions, such as Mapp or Miranda. Third and finally, it seems quite likely that the southern state courts themselves would have intervened to rectify the obvious injustices involved in these cases had the circumstances been slightly different. Southern courts in the post-World War I period were becoming more committed to norms of procedural fairness, even in cases involving black defendants charged with serious interracial crimes. Yet in cases that aroused outside criticism of the South or that posed broader challenges to the system of white supremacy, the southern state courts regressed. Part II evaluates the impact of these Supreme Court decisions, in terms of both the precise issues involved (e.g., black service on juries) and the general treatment of blacks in the southern criminal justice system. It turns out that none of these rulings had a very significant direct impact on Jim Crow justice. This Part will explore some of the factors that explain the general failure of these Supreme Court decisions to affect the actual treatment of black criminal defendants in the South. Yet this Part also suggests that these criminal procedure rulings may have indirectly contributed to the modern civil rights movement by educating blacks about their rights, mobilizing protest in the black community, and rallying support among sympathetic whites who were horrified by revelations of Jim Crow practices at their worst. Part III connects these criminal procedure decisions to broader themes in constitutional and civil rights history, identifying some tentative lessons regarding the nature and consequences of Supreme Court constitutional decisionmaking and the dynamics through which American race relations have changed over time.
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This essay looks at three issues concerning freedom in American history. First, it examines competing conceptions of freedom--positive/negative and individual/political-and considers whether the equal validity of these competing conceptions makes freedom such a malleable concept that it is vacuous. In other words, freedom apparently can be invoked with equal plausibility on either side of any significant political dispute. Second, the essay seeks to identify the circumstances or conditions under which particular freedoms prosper and expand. Third and finally, it considers the complex and sometimes paradoxical role that courts have played in the history of American freedom.
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Michael Klarman, Neither Hero nor Villain: The Supreme Court, Race, and the Constitution in the Twentieth Century: Chapter 1: The Plessy Era (U. Va. Sch. of L., Legal Studies Working Papers Series, Working Paper No. 99-3a, June 1999).
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Chapter 1 of my forthcoming book is on the Plessy era. It discusses four sets of issues -- racial segregation, disfranchisement, black exclusion from juries, and the separate-and-unequal issue raised in Cumming (1899). The purpose of the book is to situate Supreme Court decisions within the broader sociopolitical context of the time. My conclusions from this first chapter are as follows. First, the Justices' performance during the Plessy era confirms the limited capacity of the Supreme Court to protect minorities from majoritarian oppression. Second, the text of the Constitution and legal precedent construing it were sufficiently indeterminate to accommodate the Justices' racial inclinations. Third, "subconstitutional" rules governing issues like the standard of proof for establishing a constitutional violation, conditions of access to federal courts, and standards of federal court review of state court fact findings are as important to the effective enforcement of constitutional rights as are their formal declaration. Fourth, even had the Plessy Court been more committed to the pursuit of racial equality, there were clear limits on how much judicial intervention could have accomplished, given the lack of inclination in the national political branches to enforce aggressive pro-civil rights decisions, the fierce opposition of southern whites, and the underdeveloped bureaucratic capacity of the national government. Fifth, even had the Court broadly defined the constitutional rights of blacks, and these decisions had somehow been enforceable, not much of substance would have changed for southern blacks, since most of Jim Crow's legal apparatus reflected rather than produced a social reality of white supremacy.
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Michael Klarman, Neither Hero nor Villain: The Supreme Court, Race, and the Constitution in the Twentieth Century: Chapter 2: The Progressive Era (U. Va. Sch. of L. Legal Studies Working Papers Series, Working Paper No. 99-3b, June 1999).
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Chapter 2 of my forthcoming book examines and interprets the four sets of race-related cases that the Supreme Court decided in the 1910s -- the peonage cases (Bailey v. Alabama and United States v. Reynolds), the grandfather clause cases (Guinn v. Oklahoma and Myers v. Anderson), the residential segregation case (Buchanan v. Warley), and the separate-and-unequal transportation case (McCabe v. Atchison, T.&S.F.R. Co.). The chapter first investigates the extralegal context surrounding these decisions, arguing that American race relations reached a nadir during the Progressive era. Next, I consider the apparent paradox that in the midst of this oppressive sociopolitical context, the Court handed down four significant victories for the civil rights cause. The chapter contends that this paradox is more apparent than real. The Progressive era race decisions, I argue, are best understood as indicating a minimalist commitment to constitutionalism -- that is, the very least that a straight-faced commitment to constitutionalism entailed -- rather than any advance in the Justices' support for racial equality. The chapter also examines the practical effects of the four sets of decisions, concluding that they had essentially no impact on actual racial practices. I conclude by examining the possible symbolic importance of these civil rights victories, as well as the possibility that their principal significance may be the litigation's contribution to the process of mobilizing a civil rights consciousness in the black community.
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This essay examines what the Clinton impeachment debate reveals about the nature of constitutional interpretation and the function of constitutional rhetoric in political debate. One striking feature of the impeachment debate was the certitude with which politicians and pundits espoused a variety of constitutional interpretations, notwithstanding the thinness of the constitutional law governing impeachment. After showing that the Constitution does not resolve most of the disputed issues raised during the Clinton impeachment, the essay considers the consequences of conducting a transparently political debate in constitutional terms. I argue, first, that debating impeachment questions in constitutional terms enabled politicians to evade responsibility for their actions. Second, by invoking constitutional rhetoric, Republicans implicitly tapped into the anti-majoritarian strand of constitutional law, without ever offering a justification for treating impeachment as an issue upon which minorities warrant protection from majoritarian decisionmaking. Finally, the essay briefly considers what the impeachment debate teaches us about constitutional interpretation.
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This paper identifies and then criticizes ten of the leading accounts of constitutionalism: enforcement of a principal-agent relationship; enforcement of societal precommitments; providing a mechanism for checks and balances; protection of minority rights; maintenance of continuity or tradition; symbolizing national unity; serving an educational function; securing finality for disputed issues; providing a rule of recognition for law; satisfying a majoritarian preference for constitutionalism. The bulk of the paper consists of normative and positive criticism of these ten putative justifications for constitutionalism; that is, I argue that they are neither unambiguously attractive, nor do they describe particularly well our own constitutional system. In a brief, second part of the article, I offer what I believe to be a better description of our constitutional system and then assess whether that account is normatively attractive. Boiled down to essentials, my positive account of the American system of judicial review is this: The Supreme Court, in politically unpredictable ways, imposes culturally elite values in marginally countermajoritarian fashion.