Stanford Politics

Pamela Karlan is a Professor of Constitutional Law at Stanford Law School and the co-director of the Supreme Court Litigation Clinic. Karlan attended Yale University where she received a bachelor’s, master’s, and a law degree. Before joining the Stanford faculty in 1998, Karlan worked at the NAACP Legal Defense and Educational Fund and later taught at the University of Virginia Law School. In 2014 she served as the US Deputy Attorney for Voting Rights in the Civil Division of the Department of Justice . In October of 2019, Karlan argued her ninth case before the Supreme Court—Bostock vs. Clayton County. The case focused on whether employment discrimination against LGBTQ+ people was a violation of Title VII of the Civil Rights Act of 1964. The decision of the case remains pending. Stanford Politics spoke to Pamela Karlan about the implications of this case and the state of the Supreme Court more generally. What follows is a transcript of the interview, edited for length and clarity.

Stanford Politics: How did you get involved with the Bostock v Clayton county case?

Pamela Karlan: Just as a technical matter, I represent Zarda. There were two cases that the Supreme Court granted review in the Bostock against Clayton County case, and then a case called Altitude Express against Zarda, and they’ve gone different ways in the lower court. So our client has won his argument that Title VII covers sexual orientation and Mr. Bostock had lost his. And when the court grants two cases like that they often consolidate them for oral arguments. We wrote a brief for Mr. Zarda and the very good lawyers who represented Bostock, a guy named Brian Sutherland, was the lead lawyer there. But the Supreme Court would only allow one of us to argue and we agreed because I had more experience arguing at the Supreme Court that I would do the argument for both clients. So I represented both of them at the argument, but Mr. Bostock actually has his own lawyer.

SP: How did you get involved with representing him?

PK: The lawyer who represented Mr. Zarda all along from filing the complaint in the trial court, up through now was a man named Greg Antollino, who had been a student of mine in 1993, when I taught at NYU for a semester. I had written him to congratulate him about the case, and he contacted me to help out when he realized the other side was going to try and get the Supreme Court to take the case. That’s how the case came to us. I had been involved in a number of the previous gay rights cases at the Supreme Court stretching back to 1996, when I worked on a case called Romer v. Evans. I’ve also worked on two of the marriage equality cases.

SP: What do you think the implications for the ruling are and why should people be concerned about it? How will it affect our society? 

PK: Well, there are a number of states in which state law protects people from discrimination in employment on the basis of sexual orientation, but the majority of states don’t provide any protection to LGBT employees. The implication of the case is about whether fair employment laws apply to people who would otherwise lose their job or be treated differently on their job or be harrased because of the fact that they’re lesbian, gay, or bisexual.

SP: With the 2020 Election approaching and the various contentious cases being heard by the court, do you have any predictions for how the court might rule this cycle?

PK: Well, you know, the Supreme Court says that it doesn’t consider the upcoming election at all, but I think the court does consider its overall position in American society and having the respect of people on both sides of the aisle. The Chief Justice went out of his way earlier this year to respond to the President and say there aren’t Obama judges and Trump judges. I mean obviously those two presidents have appointed very different kinds of people to courts. You know, it’s very hard to predict which way to go on this, I think it will be a close vote either way.

SP: Considering the current political climate and new judge appointees, especially in the public outcry that surrounded the Kavanaugh nomination, what are your thoughts on the future of judicial review in the United States?

PK: We’re going to have judicial review. The future of judicial review is that it is going to continue. The question of whether the Supreme Court continues to enjoy widespread respect among the American people depends on how the Supreme Court rules. Not so much in a case like mine, although I think our case will make the front page, but how the Supreme Court deals with the stuff that is bubbling up now that’s connected to this administration, in a way that our case really isn’t connected with the administration.

SP: I’d love to know more about your experience in general arguing in front of the Supreme Court. Do you have any special rituals or superstitions that you do before arguing in front of the Supreme Court? 

PK: I don’t have a huge number of rituals and superstitions. I generally like to stay at the same hotel, which is a hotel that’s fairly close to the court and I can walk to the court. And I eat a banana and have a little bit of juice before the argument because I don’t want to risk my stomach. I wear the same suit. I’ve won the same suit now for seven arguments. I’m not gonna change it until something bad happens. I have stuff I read the night before, but I don’t have a whole ritual.

SP: Do you have anything else you feel is important about the case that you want to share or about your experience generally?

PK: I think every case in some sense is the case of a lifetime for the clients, but generally the Supreme Court takes cases because they affect more people than just the clients in the case. There are millions of LGBT people in the United States who go to work every day, and knowing that you’re protected by federal law is really important for them.

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Valeria Gonzalez, a freshman, is a staff writer for Stanford Politics.