Michael Klarman has just posted a draft of his upcoming Harvard Law Review Supreme Court foreword, and it’s a doozy. There’s its sheer length: at 262 pages and 2841 (!) footnotes, it’s a full-fledged monograph (and by the time the law review editors are done with it, I’m sure it will be 20% longer). I had the good fortune of studying two semesters of constitutional history with Klarman in law school, and the article has all the hallmarks of his teaching: encyclopedic coverage, incredibly clear presentation, and a deep realism (mostly of the pessimistic variety) about the Supreme Court as a legal and political institution.
Klarman has always been a skeptic about American legal institutions. He’s argued that the Supreme Court played only an indirect role in the civil rights movement; too cautious to actually enforce Brown v. Board of Education, the Court’s role was mainly to create a violent backlash among segregationist southerners, which triggered its own backlash (to the backlash) among northerners, leading ultimately to federal civil-rights legislation. And Klarman has also updated the Beard thesis, arguing that the Constitution was an anti-democratic power grab by propertied elites who wanted to protect their privileges against democratic redistribution.
Klarman’s Foreword continues this bleak view. This time the target is American democracy itself, at least in its current state. Klarman’s argument isn’t novel, but I don’t think that was his intention. Instead, it’s a superb synthesis of what we might call the Standard View of American Democratic Decline: driven since the 1970s by changing demographics (the relative decline, both in terms of population and cultural dominance, of white Americans), rising inequality, and a Republican party willing to stoke white grievance in exchange for regressive economic policy. (In Ezra Klein’s great phrase, the Republican party is a machine for turning white grievance into tax cuts for the rich.) It’s a story that culminates in Trump’s authoritarianism, but the real villains (because they could have acted differently) are GOP elites who have enabled Trump at every turn.
It’s been a common argument over the past few years, but Klarman’s comprehensiveness makes the Foreword a terrific synthesis and reference work. In many ways it’s the first and last thing anyone needs to read on the topic. At the same time, Klarman overreaches in several places in ways that I worry will push away people that aren’t already inclined to believe him.
First, he devotes a long section to what he calls the “neo-Ayn Randians”: the libertarian economists (notably Milton Friedman and James Buchanan) and their political-scientist and legal-scholar fellow travelers who emphasized the importance of property rights, argued for tax cuts and deregulation, and (through public choice) questioned the foundations of democratic politics. Klarman calls out the law and economics movement, and I’ll be curious to see the reception the Foreword gets at places like Chicago or George Mason (a chilly one, I’d imagine).
Klarman’s not wrong that the libertarian movement has come to dominate Republican economic thought, with disastrous consequences: a movement that fundamentally doesn’t like government doesn’t do well when it’s put in charge of government. And to the extent that rising inequality weakens democracy (an argument that Klarman makes and that I agree with, but that I wish he had spent more time on), it can be legitimately criticized.
But I’m skeptical of Klarman’s argument about the unique threat the “neo-Ayn Randians” pose to American democracy. I’m surprised at how much he uncritically relies on Nancy MacLean’s history of the movement, given how much criticism it has come under, including from scholar unaffiliated with the libertarian movement. But the bigger issue is that Klarman ignores the progressive left’s own willingness to override democratic majorities, albeit in favor of social and cultural, rather than economic, rights (e.g., abortion, gay marriage, removal of religion from public life). The fact is that libertarianism and a suspicion of democratic majorities has been ascendant on both sides of the political spectrum.
Second, Klarman’s criticism of the Supreme Court sometimes goes too far. He is absolutely right to criticize the Court’s evisceration of voting rights. The further out we get from Shelby County, in which the Court gutted the Voting Rights Act, the more indefensible that decision looks. (One wonders whether, given his institutional instincts and what he’s seen of the consequences of the decision, the Chief Justice regrets his vote.) And there’s no question that the Roberts Court is pro-business.
But Klarman’s argument about how some of the Court’s decisions amount to “indirect entrenchment” of the Republican Party go too far. He argues, for example, that because the Court has weakened labor unions in cases like Janus and trial lawyers through tort reform, and that both groups traditionally support the Democratic party, the Court is acting to benefit the Republicans. This may be the effect, but as a criticism of the Court’s jurisprudence it seems unfair. After all, had Garland, not Gorsuch, replaced Scalia, the last four years would have been bad for the interests of the Chamber of Commerce; but would that alone have opened the Court to legitimate criticism that it was acting in the interests of the Democratic party? Many of the Court’s decisions have the effect of hurting one party or the other. But that doesn’t by itself make the Court a partisan institution.
Third, Klarman’s suggestions for reform are underdeveloped. This isn’t necessarily a problem: the value of a piece like this is in its clear-eyed diagnosis. And I’m broadly convinced by Klarman’s general point that there’s no substitute for winning elections, entrenching democracy through legislation, and appointing like-minded judges (and perhaps even fiddling with the composition of the Supreme Court and lower courts, if it comes to it).
But Klarman sometimes seems willing to give up on constitutionalism in its entirety. Consider his “solution” to the problem of the undemocratic Senate:
The second way to pursue a fairer Senate apportionment would be simply to ignore the constitutional provision mandating two senators for every state as a particularly egregious example of dead-hand control. The Senate could then be reapportioned through statute or perhaps a national referendum. Ignoring a clear constitutional provision would trouble many Americans, but the Court has done this itself more than once when societal consensus strongly backed the move, such as applying equal-protection principles to the federal government despite the Fourteenth Amendment’s plainly applying only to “state[s],” and applying the First Amendment to the executive and the judiciary, even though its reach is plainly limited to “Congress.”
This is a level of popular constitutionalism that I don’t think even Bruce Ackerman would be comfortable with. It certainly merits more than a few sentences in its defense.
All of these are fairly minor critiques of what is an excellent article that will surely be a Very Big Deal in the legal academy. And whether you agree with Klarman or not, it’s a good thing that the top law review, in its flagship article of the year, has put the future of American democracy squarely on the top of the agenda for legal scholarship.