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.
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