Michael Klarman

The most striking detail in the recent investigation by The New York Times into another potential Supreme Court breach is not the evidence that Justice…

The Constitution makes reference to voting 15 times in the original document and another 22 in the amendments. But somewhat surprisingly, none of those mentions…

The cataclysmic Supreme Court term that included the unprecedented leak of a draft opinion and the end of constitutional protection for abortion would, in the…

The United States has experienced deep political turmoil several times before over the past century. The Great Depression caused Americans to doubt the country’s economic…

Roe vs. Wade, the Supreme Court’s best-known decision of the last 50 years, is also its most endangered precedent. It gave women nationwide the legal right to choose abortion, but the backlash reshaped the country’s politics. The landmark ruling may well be overturned by conservative justices appointed by Republican presidents to do just that. What went wrong with Roe? Why did the court’s effort to resolve the abortion controversy in 1973 lead instead to decades of division? ... “The first-trimester/second-trimester dividing line is a big deal,” said Harvard Law School professor Michael Klarman. “It’s why ‘partial-birth’ abortion laws were such a political gold mine for Republicans. Roe created such a broad abortion right that it probably pushed some of the many Americans in the middle of the spectrum on this issue into the opposition.”

Roe vs. Wade, the Supreme Court’s best-known decision of the past 50 years, is also its most endangered precedent. It gave women a nationwide legal right to choose abortion, but the backlash reshaped the nation’s politics. The landmark ruling now faces being overturned by conservative justices appointed by Republican presidents to do just that. What went wrong with Roe? Why did the court’s effort to resolve the abortion controversy in 1973 lead instead to decades of division? ... “The first-trimester/second-trimester dividing line is a big deal,” said Harvard Law School professor Michael Klarman. “It’s why ‘partial-birth’ abortion laws were such a political gold mine for Republicans. Roe created such a broad abortion right that it probably pushed some of the many Americans in the middle of the spectrum on this issue into the opposition.”

A new book by Rohan J. Alva, counsel at the Supreme Court, gives an eye-opening account on the origins of the most important fundamental right in the Indian Constitution — the right to life and personal liberty guaranteed by Article 21. Titled ‘Liberty after Freedom’, the book explores Article 21 that has, in recent years, made the right to privacy as well as the decriminalisation of homosexuality possible. ... Michael Klarman, professor at Harvard Law, called the book an ambitious and fascinating account, adding that “Alva sheds interesting historical and comparative light on the well-nigh irresolvable conflict between a society’s commitment to protecting the fundamental rights of individuals and constraining the power of unrepresentative and politically less-accountable judges”.

When Republican leaders make judicial appointments, they are often looking for only one thing: whether a candidate adheres to the school of thought known as constitutional originalism. There’s a simple reason for that singular focus. To originalism proponents, it signals that judges will remain steadfast to the intended meaning of the Constitution rather than to the many ways it could be interpreted today. To its detractors, it’s a “dog whistle” to those on the right looking for judges who will consistently rule in a conservative-leaning way. ... Constitutional originalism is loosely defined as interpreting the Constitution “according to the original understanding,” says Harvard Law School professor Michael Klarman. What that means is focusing first and foremost on what the framers intended when they wrote the Constitution. “Originalism has always been around,” Klarman tells Teen Vogue. “When judges interpret the Constitution, one of the things that they do is look at what the terms in the Constitution mean to the generation that wrote them and ratified them.”

Guest: Michael J. Klarman is Kirkland + Ellis Professor of Law at Harvard Law School and author of the Bancroft Prize-winning From Jim Crow to Civil Rights, and his latest, The Framers’ Coup: The Making of the United States Constitution.

Once obscure, the Senate filibuster is coming under fresh scrutiny not only because of the enormous power it gives a single senator to halt President Joe Biden's agenda, but as a tool historically used for racism. Senators and those advocating for changes to the practice say the procedure that allows endless debate is hardly what the founders intended, but rather a Jim Crow-relic whose time is up...The debate ahead is no longer just academic, but one that could make or break Biden's agenda in the split 50-50 Senate. Carrying echoes of that earlier Civil Rights era, the Senate is poised to consider a sweeping elections and voting rights bill that has been approved by House Democrats but is running into a Senate Republican filibuster...Harvard Law professor Michael Klarman said while the filibuster may not in itself be racist, it certainly has been used that way in the past — as well as in the present. "There's nothing partisan about saying the filibuster has mostly been used for racist reasons, I think everybody would agree that that's true," he said.

An op-ed by Michael Klarman: Supporters of donald trump assaulted the capitol on January 6, 2021, but American democracy has been under siege for far longer—from both former President Trump and the Republican Party. Trump’s transgressions against democracy are well known: They include having attacked the press as the “enemy of the people,” assailed sitting judges, politicized the Justice Department and the intelligence agencies, undermined transparency in government, encouraged political violence, and delegitimized elections. The Republican Party’s undermining of democracy began much earlier. Since about 2000, the party has tried to suppress Democratic votes through stringent voter-identification laws and purges of voter rolls. In addition, Republican legislatures have grotesquely gerrymandered legislative districts, enabling Republicans to maintain control of state legislatures and, at times, the House of Representatives, while failing to win majorities of the vote. Republicans have also erected obstaclesto college students’ voting, delayed elections that they anticipated they would lose, and eviscerated the powers of Democratic governors. Republican state legislators have also rejected the results of voter initiatives and imposed obstacles to putting such initiatives on the ballot in the first place.

In search of historical guidance and legal tools to respond to the violent siege of the U.S. Capitol last week, members of Congress and legal scholars alike are re-examining a little known section of a Reconstruction-era constitutional amendment. Section 3 of the 14th Amendment, in theory, gives Congress the authority to bar public officials, who specifically took an oath of allegiance to the U.S. Constitution, from holding office if they "engaged in insurrection or rebellion" against the Constitution and therefore broke their oath. But the provision has rarely been used or tested, and so scholars are unsure about how exactly Congress could exercise authority under this provision and to what end today...Michael Klarman, constitutional law scholar at Harvard Law School, though told ABC News in email that he believes that applying Section 3 of the 14th Amendment to disqualify from office a member who questioned the legitimacy of the election, based on the events from last week was "a real stretch." He added that "insurrection" and "rebellion" are "legal terms with established meaning. ... I just don't think Wednesday's event would qualify." "While (Sens.) Hawley and Cruz are despicable, and I have signed the petition calling for their disbarment, it seems a huge stretch to me to describe what they did (Wednesday) as 'insurrection or rebellion,'" Klarman wrote.

Are Americans witnessing a coup? Before the storming of the U.S. Capitol on Jan. 6, the case was arguable, but not a slam dunk. After the Capitol was breached, the case became more clear cut, experts say. The questions stem from President Donald Trump’s reaction to losing the 2020 presidential election. Trump and his supporters have filed a string of lawsuits rejected by the courts, sought to strong-arm local officials into changing the results, and suggested incorrectly that Vice President Mike Pence could overturn the will of the electoral college as he presided over the counting of the ballots. Whether the U.S. was witnessing a coup seemed speculative until the violent overrun of the House and Senate on the day the Electoral College votes were supposed to be counted, officially certifying Biden’s victory...All this seems to fit the category of a "sudden and irregular (i.e., illegal or extra-legal) removal, or displacement, of the executive authority of an independent government." It was sudden, laws were broken, and official functions of the government were displaced. (For this to apply, one has to envision President-elect Joe Biden as the "executive authority," rather than Trump, the incumbent but lame duck president.) "Invading the national legislature through force sounds like a coup; peaceful protest is obviously not," said Michael Klarman, a Harvard Law School professor.

Harvard Law professor Michael Klarman is a legal historian and scholar of constitutional law. He clerked for Ruth Bader Ginsburg when she was a judge on the D.C. Circuit Court of Appeals. Klarman’s book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality received the 2005 Bancroft Prize in History. Will the new 6-3 Republican Supreme Court intervene to help Donald Trump steal what now looks to be a convincing Biden win? And will Democrats be able to put America back on course to reclaim its democracy? Harvard Law professor Michael Klarman provides reassurance on both counts. Robert Kuttner: “Do you think the Supreme Court has enough of a regard for its own credibility and enough respect for basic democratic norms that even this Court will be hesitant to overturn the results of the 2020 election, assuming Biden does win Michigan, Pennsylvania, and Wisconsin? When will we have some sense of whether the Court is unwilling to do Trump’s political bidding by overturning the election results?” Michael Klarman: “The Court isn’t going to overturn the election result. The election isn’t close enough for any of Trump’s litigation to affect the result. What the president wants is to stop the counting of votes in Pennsylvania (while demanding that vote counting continues in Arizona!). But there is no legal controversy about the votes in Pennsylvania. They were received before election night. There is no question they should count. The Pennsylvania legislature should have changed the law to allow them to be counted before Election Day, as many other states permit, but Republicans in the legislature would not allow this, perhaps because they wanted to support Trump’s fraudulent claim that votes counted after election night are fraudulent.”

The addition of Amy Coney Barrett to the U.S. Supreme Court will maintain the number of female justices, but the composition of the panel continues to look quite different than the rest of America in gender, race and religion as well as on certain key policy issues. If she’s approved by the Senate, Barrett is expected to be another conservative voice on a court that’s mostly white, male and Catholic. In an era of increasing questions about systemic racism in the judicial system, the court may find itself out-of-step with the rest of the country if the November election results in a substantial shift to the left. “Obviously, demography and anything else that shape one’s experience affects how one thinks about the world and thus one’s judging,” said Michael Klarman, a professor at Harvard Law School. “Chief Justice Roberts implicitly denies this when he talks about judges calling balls and strikes, but I think most people acknowledge that a judge’s experience cannot somehow be abandoned when donning robes.” Some of the issues on which the court may come to be at odds with public opinion include abortion, which 79% of Americans say should be legal, at least under certain circumstances, and upholding the Affordable Care Act, which is viewed favorably by 49% of Americans according to a September Kaiser Family Foundation Health tracking poll, compared to 42% who view the law unfavorably.

During her first year as the sole woman on the US Supreme Court in 2006, Justice Ruth Bader Ginsburg wrote a foreword for a biography of the 19th-century lawyer Belva Ann Lockwood and presented the book to a new law clerk in her chambers. On Thursday, the clerk, Daphna Renan, now a professor at Harvard Law School, highlighted the foreword as an example of how Ginsburg broke barriers for women while simultaneously honoring her predecessors in the fight for equality. “Justice Ginsburg was a giant in the law, a luminary, and a leader, as you’ve heard, but she was always ... keenly aware of those who paved the way for her even as she trained her sights on how she could better pave it for others,” Renan said. She delivered the remarks during a virtual Harvard Law School event honoring Ginsburg, who died last Friday...Harvard Law’s current dean, John F. Manning, said the institution regrets the discrimination Ginsburg endured on campus. “It is hard to imagine a more consequential life, a life of greater meaning, and more lasting impact. And Justice Ginsburg did all of this while carrying the heavy weight imposed by discrimination,” he said. “To our eternal regret, she encountered it here at Harvard Law School.” The virtual event included tributes from Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, and Harvard Law professors Vicki Jackson, Martha Minow, and Michael Klarman...Brown-Nagin’s remarks explored what Ginsburg’s death means to the civil rights movement and comparisons between Ginsburg and the late Justice Thurgood Marshall, the first Black man to serve on the Supreme Court. Beyond fighting for women’s rights, Brown-Nagin said, Ginsburg had a deep understanding of racial discrimination and poured that insight into cases dealing with race. She cited Ginsburg’s dissent in a 1995 school desegregation case in Missouri in which the justice wrote it was too soon to curtail efforts to combat racial segregation given the state’s history of racial inequality. “The Court stresses that the present remedial programs have been in place for seven years,” Ginsburg wrote. “But compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the [lower court] has been evanescent.” Ginsburg was, Brown-Nagin said, a “tremendous intellect, a courageous human being, and a giant of the law.”