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Scholarship, The Cutting Edge

Pamela S. Karlan and the Law of Democracy

Photo by Jennifer Paschal

The last two months of 2000 were unusually busy for Pamela Karlan. The November 7 presidential race between Al Gore and George W. Bush was too tight to call, the final election result hanging in the balance while politicians and courts debated the pivotal Florida vote count. The American public—and much of the world—watched and waited as one of the greatest voting dramas in history played out in newspaper headlines and television discussions, with the U.S. Supreme Court case, Bush v. Gore, taking central stage. A full month of uncertainty and legal haranguing passed before the case and the election were decided on December 12, 2000, and Bush was named the winner. Just two years earlier, Karlan’s seminal casebook, The Law of Democracy: Legal Structure of the Political Process (co-authored with Samuel Issacharoff and Richard H. Pildes, in 1998), firmly placed her at the center of voting rights law and spawned an interest in that scholarly specialty in the academy and beyond. One of a few voting rights law scholars in the country, Karlan was thrust into the spotlight, putting legal jargon deftly into understandable language for popular consumption as Bush v. Gore held the attention of the nation. By her count, she appeared on Nightline 7 times and the PBS NewsHour 11 times—all in a 20-day period.

“We hit what was, of course, a tragedy for the country: Bush v. Gore. But for voting rights scholars it was a golden opportunity,” says Karlan. “Two years after the book came out, everyone started to notice these important aspects of our democracy.”

When talk about the possible nomination by President Obama of Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of the Supreme Court Litigation Clinic, to the U.S. Supreme Court surfaced in the media in 2008, legal scholars and experts alike praised the idea, though many knew it was unlikely to gain traction in the partisan political world that is today’s Capitol Hill. Karlan referenced the rumor in her keynote address to Stanford Law School’s graduating Class of 2009 by saying, “Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime.

“Sure, I’ve done lots of things I regret over the years. But the things I regret aren’t the things that keep someone from being nominated or getting confirmed. I regret being unkind to people I love and respect and admire. I regret getting frustrated by little things.

“But I don’t regret taking sides on questions involving the Voting Rights Act. I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. There’s a well-known book about a high school basketball team called In These Girls, Hope Is a Muscle. Well, in a lawyer, courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.”

For Karlan, law isn’t about playing it safe. Her opinions about voting rights and the political process are sought by experts, colleagues, and the media (The New York Times even devotes a “topics” page to her). She is a prolific scholar who has written important papers and books including Keeping Faith with the Constitution (with Goodwin Liu, BS ’91, and Christopher H. Schroeder, 2010) and pieces in the popular press including her monthly Boston Review column. She is a familiar face at the U.S. Supreme Court, where she has argued seven cases (her first, Chisom v Roemer, in 1991, for which then-U.S. Solicitor General Kenneth Starr, and future U.S. Supreme Court Chief Justice and then-Deputy Solicitor General John Roberts, joined Karlan on behalf of the Petitioners). She co-founded Stanford’s Supreme Court Litigation Clinic, the first of its kind at any law school, which has compiled a record at both the certiorari and merits stages that would be the envy of any appellate practice. Over the past nine years, the clinic has represented parties as lead counsel in over three dozen cases on the merits, winning a substantial majority. Guided by Karlan and co-director Jeffrey Fisher, the clinic has also secured victories for clients by defeating petitions for certiorari filed by the U.S. Solicitor General, state attorneys general, and large businesses.

But perhaps her other first, the publication of The Law of Democracy: Legal Structure of the Political Process, best illuminates Karlan’s influence on law. This year in its fourth edition with a whole section added after the 2000 election, the casebook is weighty not only in girth (almost 1,400 pages long and 5.63 pounds) but in its subject matter. It was the first casebook to examine the relationship among key aspects of democracy including the historical development of the individual right to vote, current struggles over racial gerrymandering, state regulation of political parties, the constitutional and policy issues surrounding campaign-finance reform, and the tension between majority rule and fair representation of minorities in democratic bodies. The text puts “the laws of democracy” into historical context, drawing connections between a myriad of seemingly disparate issues, something that Karlan, who has a joint JD/MA in History, describes as central to much of her scholarship.

“We took a bunch of areas of law that people had thought of as separate silos. We showed that there are important relationships between them and that you can gain a vantage point to critically view one from looking at another; there’s an ecosystem,” says Karlan, who adds that voting law is naturally interdisciplinary. “There are political scientists, sociologists, historians, computer scientists, and people who study the actual physical process of voting, ballot design, and voting machines. Campaign finance and political structure. Super PACs. It’s all part of our democracy.”

And throughout the country in the lead-up to the 2012 election, public officials, court cases, and political activists are giving Karlan and her co-authors plenty of material to consider for future editions of their casebook.

“Citizens United [v. Federal Election Commission] is just one in a long series of cases. The case is shorthand for a much bigger point— that the Supreme Court has made it very hard to regulate the money that flows into elections and influences them. There are 501(c) organizations, wealthy individuals, corporations, super PACs.” She points to how the Court’s opinion bears out a point she made in an article co-authored with Issacharoff, The Hydraulics of Financial Reform. “The point of the piece is that money is like water. It flows—if you dam it up in one place, it will flow to another. And what the Supreme Court’s campaign finance decisions have done, along with various statutes passed by federal and state governments, is to channel that money in ever more worrisome forms.”

And there are many more challenges for Karlan to consider—particularly regarding voters casting their votes, with states passing new registration and identification requirements. “Voter ID laws are in some ways a new form of the literacy test,” says Karlan. “Our country is one of the few that still treats registration for voting as essentially the responsibility of the individual rather than the government.”

While Bush v. Gore clearly brought Karlan’s voting rights expertise to national attention, it was another famous Supreme Court case that inspired her career in the law.
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The U.S. Supreme Court’s landmark decision Brown v. Board of Education marked a turning point for America in 1954, not only righting centuries of legal segregation but also fanning the flames of a still nascent civil rights movement. The decision sparked something in a young Pamela Karlan, too. “I decided to become a lawyer during the summer between my sophomore and junior years of high school after I read Simple Justice by Richard Kluger,” she says. Kluger’s account of the epic struggle for racial equality and desegregation in public education and the internal struggles of everyone involved in the Supreme Court case so inspired Karlan that she set her sights on not just becoming a lawyer but a civil rights lawyer working on school desegregation for the NAACP Legal Defense and Education Fund (LDF).  And that is what she did. Almost.

After graduating from Yale Law School in 1984, Karlan clerked first for Judge Abraham D. Sofaer of the U.S. District Court for the Southern District of New York and then for Justice Harry A. Blackmun of the U.S. Supreme Court. She then turned down an offer to teach at Yale Law School— saying, “I went to law school to be a civil rights lawyer”—and she fulfilled her ambition by becoming a staff attorney for LDF—but working on voting rights cases. Timing is everything, and another junior attorney who started working a few months before Karlan got the desegregation work.

She was thrilled nonetheless. “I felt like I was in one of those scenes in a Mickey Rooney and Judy Garland movie when they say ‘Hey, my dad has a barn. Let’s put on a show!’ I was just happy to be in the show,” she says. And Karlan made the most of her part. “I found I loved voting rights cases,” she says. “I loved my clients; they were interesting, civically committed people trying to make a difference in their communities. I loved the background research for my cases. I loved my co-counsel. I loved the intellectual puzzle of this kind of law.”
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“One of the first voting rights cases I ever worked on was with Sam,” says Karlan of her Yale Law School classmate, friend, and co-author Samuel Issacharoff. He was a staff attorney at the Lawyers’ Committee for Civil Rights Under Law when Karlan started at LDF and she was assigned to help Issacharoff with the upcoming trial of a judicial elections case in Mississippi. “They said go and help him on the trial and you’ll learn a bunch. And I did,” says Karlan.

Karlan stayed with LDF for two years before opting for a change. She’d gotten tired of big city living (LDF headquarters are in Manhattan) and grown weary of the discovery process that she describes as “painfully micro-aggressive.”

“I decided that I could continue doing appellant litigation with LDF as a co-operating attorney, but in a small college town where I could teach law and write about voting rights law.”
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In 1988 Karlan was a new member of the University of Virginia School of Law faculty thinking about what she would teach. “When you’re a junior teacher, you don’t actually know all that much about a whole lot of things. But I thought, well, I know about voting rights,” says Karlan. There was only one problem: There were no casebooks. So Karlan pulled together photocopied materials, which she shared with Issacharoff when he started teaching a year later.

“We were teaching from these photocopies. And we had given them to Rick Pildes too—he was teaching in Michigan. And we said why don’t we put together a book proposal,” says Karlan. They met for a weekend and hammered out the proposal, which was accepted by Foundation Press. They divided up the massive research and writing project among the three of them, and sought feedback from other law professors, including Barack Obama, then a constitutional law professor at the University of Chicago. And in 1998 the first edition of the casebook was published.

“We’ve turned The Law of Democracy into a distinct sub-field of law,” says Karlan. “You now have lots of different law schools teaching it, and there is a great generation of junior scholars coming up who do terrific work in the area.”

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