Courts, Social Change, and Political Backlash

On March 31, 2011, Professor of Law, Michael Klarman of Harvard Law School delivered the Georgetown Law Center’s thirty-first annual Philip A. Hart Lecture: “Courts, Social Change, and Political Backlash.” Included here are the speaker\u27s notes from this lecture. Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School. Formerly, he was the James Monroe Distinguished Professor of Law, Professor of History, and the Elizabeth D. and Richard A. Merrill Research Professor at the University of Virginia School of Law. Klarman specializes in the constitutional history of race. Klarman holds a J.D. from Stanford Law School, a D.Phil. from Oxford University and an M.A. and B.A. from the University of Pennsylvania. He has won numerous awards for his teaching and scholarship, which are primarily in the areas of constitutional law and constitutional history. His book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004), received the Bancroft Prize

Brown at 50

Brown at 50: This essay will appear in the Virginia Law Review's symposium issue commemorating the 50th anniversary of Brown v. Board of Education. It canvasses three issues: (1) why was Brown a hard case for the justices?; (2) how were the justices able to overcome their legal doubts about invalidating school segregation to achieve a unanimous decision invalidating that practice?; (3) what were the consequences of Brown? (and, more specifically, how did Brown radicalize political opinion in the South, thus creating a climate ripe for violence, and how did the brutalization of peaceful black protestors by white law enforcement officers, when broadcast on national television, transform national opinion on race, leading directly to the enactment of landmark civil rights legislation?)

Civil Rights and Civil Liberties - United States

Civil Rights and Civil LibertiesUnited States: This 6,000-word essay, to be published in the Oxford Encyclopedia of Legal History, considers several issues concerning civil rights and civil liberties in the United States. First, it notes several problems with defining the topic. Second, it examines the historical conditions under which particular rights have gained popularity. Finally, the essay considers several issues involving the judicial enforcement of rights: the inclination and capacity of courts to defend unpopular rights; the enforceability of court decisions protecting rights; the unpredictable consequences of such rulings; and the characteristics of a right that render courts most likely to protect it.

An Interpretive History of Modern Equal Protection

My enterprise here is to write a limited history of modem equal protection - one that will facilitate understanding of the important conceptual shifts that have occurred over time. By modem I mean the period following the switch-in-time in 1937 that signaled the demise of the Lochner era. By limited I mean an account that falls substantially short of a full-scale history of equal protection, which would, for example, necessarily encompass a good deal of political and social history. My aim here, rather, is to tell a story about the evolution of equal protection as a legal concept; I shall, for lack of a better term, label this enterprise conceptual history

\u3cem\u3eBrown\u3c/em\u3e and \u3cem\u3eLawrence\u3c/em\u3e (and \u3cem\u3eGoodridge\u3c/em\u3e)

One year shy of the fiftieth anniversary of Brown v. Board of Education, the Justices issued another equality ruling that is likely to become a historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements. Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and the personal values of the judges. Part II considers what these landmark decisions teach us about the relationship between Supreme Court decisions and movements for social reform. Part III examines the light these rulings shed on the strategic aspect of judicial decisionmaking: how courts sometimes temper their decisions in light of political constraints. Part IV considers the consequences of Brown and Lawrence (and Goodridge v. Department of Public Health) and, especially, the political backlashes they ignited. Part V analyzes the rulings from the perspective of Supreme Court Justices attempting to predict the future. A brief conclusion speculates as to what such decisions-and history\u27s verdict upon them-teach us about the source of the Supreme Court\u27s legitimacy

Brown and Lawrence

Brown and Lawrence: One year shy of the fiftieth anniversary of Brown v. Board of Education, the justices issued another equality ruling that is also likely to become an historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This essay contrasts these two historic rulings along several dimensions, with the aim of shedding light on how Supreme Court justices decide cases and how Court decisions influence social reform movements. The six dimensions along which I compare and contrast these decisions are: (1) the ways in which both cases were hard for several of the justices; (2) how the Court decisions fit within the respective movements for social reform (i.e., was the Court playing the role of vanguard or laggard?); (3) how the respective decisions fit within the spectrum of issues involving race and sexual orientation (i.e., was the Court in Brown and Lawrence tackling issues where opinion was most likely to be with or against the Court?); (4) how and why the Court in both cases desperately evaded the marriage issue; (5) the consequences of both rulings (and, more specifically, the backlash effects they entailed); (6) the extent to which the rulings can be seen as predictions of future developments in the areas of race and sexual orientation