Michael Klarman

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.”

An article by Michael Klarman: Ruth Bader Ginsburg was appointed to the US Court of Appeals for the District of Columbia Circuit by President Jimmy Carter in 1980, and to the Supreme Court by President Bill Clinton in 1993. I had the good fortune to clerk for her when she was on the DC Circuit. Like most of Ginsburg's law clerks, I relished the experience, admiring her legal brilliance, learning from her exemplary writing skills, and both respecting and liking her as a person. But as any of us would tell you, Ginsburg -- extraordinary as she was -- was not an ordinary, down-to-earth sort of person. Conversations with her could be awkward because she always thought carefully before speaking, did not waste words, and declined to engage in small talk. Thus, conversations with her often featured long pauses, while you tried to figure out if she was finished speaking and it was now your turn, or she was still formulating her thoughts. You certainly did not want to interrupt her in mid-thought. I have two favorite stories about Ginsburg from my clerkship that I like to share with my students. I'll recount the first of them up here. Both have to do with sports -- an obsession of mine that the Justice did not share. Soon after her appointment to the DC Circuit, the Washington football team won the Super Bowl, and there was a celebratory parade down Constitution Avenue, which runs right beside the courthouse. Ginsburg asked her secretary what the noise was about. "Why, judge, that's the Super Bowl parade," her secretary replied. To which Ginsburg responded, "What's the Super Bowl?" Ginsburg was the leading women's rights lawyer of the 1970s, the decade when the Supreme Court first recognized that the Fourteenth Amendment guaranteed sex equality. When President Clinton nominated her to the high court, he rightly compared her contributions to women's rights to those of the great NAACP lawyer Thurgood Marshall to civil rights. Ginsburg's life encapsulated what the professional world was like for women 60 years ago and how much it has changed since then. When she entered Harvard Law School in 1956, she was one of only nine women in a class of more than 500.

An op-ed by Michael Klarman: Ruth Bader Ginsburg was appointed to the US Court of Appeals for the District of Columbia Circuit by President Jimmy Carter in 1980, and to the Supreme Court by President Bill Clinton in 1993. I had the good fortune to clerk for her when she was on the DC Circuit. ... I have two favorite stories about Ginsburg from my clerkship that I like to share with my students. I'll recount the first of them up here. Both have to do with sports -- an obsession of mine that the Justice did not share. Soon after her appointment to the DC Circuit, the Washington football team won the Super Bowl, and there was a celebratory parade down Constitution Avenue, which runs right beside the courthouse. Ginsburg asked her secretary what the noise was about. "Why, judge, that's the Super Bowl parade," her secretary replied. To which Ginsburg responded, "What's the Super Bowl?"

U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87. “Justice Ginsburg personified the best of what it meant to be a judge. She brought a deep intellectual and personal integrity to everything she did,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “... We have lost a giant.” ... “Very few individuals in history come close to the extraordinary and significant role played by Justice Ginsburg in the pursuit of justice before she joined the bench,” said former Harvard Law School Dean Martha Minow, the 300th Anniversary University Professor at Harvard. ... “The Constitution’s heart aches at Ruth Bader Ginsburg’s passing,” Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School. ... Harvard Law School Professor Daphna Renan, who served as a law clerk for Justice Ginsburg during the 2006-2007 term, said: “RBG was tenacious, unflappable, and deeply wise.

Momentum appears to be building for a national shutdown to confront the coronavirus crisis, raising the prospect that President Trump could issue an order requiring people to stay at home. Such an order would be unprecedented in American history, but some of Trump's top advisers have said publicly they would be open to it. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said Sunday he had raised the prospect of such a dramatic step with the administration...What such an order at the federal level might look like — and even whether Trump has the authority to issue an order — is unclear, because no president had ever tried it before. “I don’t think Congress has ever authorized the president to issue a curfew or a shelter-in-place order,” said Michael Klarman, a constitutional law expert at Harvard Law School. “I’m sure the Trump people will think Trump can do whatever he thinks is necessary to protect the nation’s health. I have a hard time imagining this Supreme Court ruling otherwise. And I have little doubt Trump would violate a court order anyway if he thought he could get away with it.”

Adiós, 2010s. The 2020s are here. But before the clock strikes midnight on the decade, the Gazette asked Harvard experts to weigh in on the biggest events and most important cultural shifts of the past 10 years.... Equally important, unlike with Brown, Obergefell failed to produce a wave of massive resistance. To be sure, a county clerk in eastern Kentucky briefly went to jail rather than grant marriage licenses to gay couples, and a state Supreme Court justice in Alabama shouted defiance at the Supreme Court’s ruling (much as an Alabama governor had shouted defiance of Brown more than 50 years earlier). But almost everywhere else in the U.S., the court’s ruling was peacefully implemented. The sky did not fall, and gay and lesbian couples began to enjoy a basic human right that had long been wrongfully denied to them. Michael Klarman Kirkland & Ellis Professor at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (2013).

An article by Michael Klarman: The topic of this article is not politics or policy but rather democracy. Regardless of what one thinks of building walls at the border with Mexico, repealing Obamacare, or withdrawing the United States from the Paris accords on global climate change, one would think that Americans could agree on the importance of respecting certain basic norms of democracy. The evidence I cite in this article suggests that Trump is an existential threat to those norms. Yet he continues to enjoy strong backing from a little more than 40 percent of the American public and from 85 to 90 percent of the Republican Party. How can this be?

An article by Michael Klarman: On Wednesday, the House Judiciary Committee will convene a panel of constitutional scholars to provide historical context for the impeachment inquiry and particularly the meaning of the Constitution’s impeachment standard of “treason, bribery, or high crimes and misdemeanors.” Were I appearing on that panel, this is what I would say: Much of the research for the statement derives from my work on “The Framers’ Coup: The Making of the United States Constitution." On July 25, 2019, President Trump asked Ukrainian president Volodymyr Zelensky for “a favor.” Considering the evidence unearthed by the House Intelligence Committee in its totality, and keeping in mind that impeachment proceedings do not require us to suspend our common sense, it is clear that President Trump conditioned a much sought-after White House visit for the Ukrainian president, as well as the delivery of nearly $400 million appropriated by Congress for Ukrainian defense, on the Ukrainian government’s doing Trump two personal favors.

Amid the pressure of a House impeachment inquiry, President Donald Trump has continued to stoke the idea that he’s the victim of a coup — shorthand for "coup d’etat," a French term that means the overthrow of the government...The key element of a coup is that it is carried out beyond the bounds of legality...Impeachment is explicitly described in the Constitution as the way to remove a president who has committed "high crimes and misdemeanors." Michael Klarman, a Harvard Law School professor, told us that you can’t get much more within the bounds of legality than an explicit power outlined in the Constitution. "It’s obviously not a coup for the House to launch impeachment proceedings," Klarman told us in early October.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].