Pamela Karlan Delivers McCorkle Lecture: “Unaccountable”
On Monday, February 24, Stanford Law Professor[1] Pamela Karlan delivered the 2025 McCorkle Lecture to an audience of students and faculty in Caplin Pavilion. Karlan titled her lecture “Unaccountable” and discussed how structural forces have undermined the political accountability of all three branches of the federal government. “We are in the midst of a crisis of accountability,” she warned.
Karlan began by noting the serendipity of presenting her lecture on the anniversary of two historical events: the Supreme Court’s 1803 decision in Marbury v. Madison—where the Court held Congress accountable by not adjudicating a mandamus petition pursuant to an unconstitutional statute—and the initiation of impeachment proceedings against President Andrew Johnson in 1868, an exercise of one of Congress’s most visible mechanisms for holding the Executive Branch accountable.
From there, Karlan refocused her discussion toward the contemporary failures of the accountability mechanisms fundamental to our constitutional system. She began with Congress and Article I of the Constitution, noting that like other federal officers members of Congress must take an oath to support the Constitution.[2] Although this oath “really should be primary,” in reality it has become merely pro forma for most members of Congress. “[They] leave serious consideration of whether what they're doing is constitutional or not to other people, and they think more about their policy preferences or their re-election prospects.” This is especially true for immigration and terrorism legislation, for which Karlan cited several examples of members of Congress who voted for bills they suspected to be unconstitutional.
Karlan continued by exploring a second dimension of Congressional accountability: accountability to the American people. Here again, “I think it's fair to say Congress is falling far short.”
Karlan noted how demographic changes referred to as the “big sort,” in which “more and more [people are] moving to communities in which they share a number of important characteristics” and the “great alignment,” in which “the way in which all of these different aspects of people's identities are fusing together to align, as opposed to being cross-cutting,” have consolidated communities around “mega-identities” that reflect political partisan divides. “The upshot…is that we have an ever-increasing number of safe seats in the House of Representatives that are held by hyperpartisans, in part, because the nomination process is skewed towards the most partisan members of Congress.”
The Senate, too, is victim to these demographic forces, explained Karlan. In several decades, 70 percent of Americans will live in the fifteen most populous states and will be represented by 30 percent of the Senate, while the remaining 30 percent of Americans will live in the other thirty-five states and will be represented by 70 percent of the Senate. Until 1994, Senate delegations from most states were split between the Republican and Democratic party, “so most states had senators who were accountable to the policy preferences of people in both parties,” explained Karlan. “That is no longer true.”
Partially as a product of the big sort and great alignment, forty-seven states are now represented by senators from the same party. Within those states, Democrats represent 169 million people, whereas Republicans represent only 141 million. “Yet Republicans hold fifty of the seats from those states, with Democrats holding only forty-four.”
This is also a product of the politicization of the admission of states to the Union, which, as Karlan noted, carries deep political roots that trace back to the Civil War and has little prospect for resolution today.
“But how has Congress fared at enforcing accountability by other government actors?” Karlan asked. “Also, not well here.” Citing the work of Daryl Levinson and Richard Pildes, Karlan explained that Congress only uses its other accountability enforcement measures vis-à-vis the Executive Branch—power of the purse, advise and consent function, oversight, impeachment—when the party affiliation of the president and majority in Congress differ. “We're seeing a heightened example of that today,” noted Karlan, citing the recent firings of inspectors general without the required statutory notice to Congress. (“Congress did nothing except send a letter saying, ‘we're sorry you did this, and we look forward to working with you on the new nominees.’”) and Congress’s confirmation of Russell Vought, who testified that the president ran on a notion that the Impoundment Control Act is unconstitutional, as head the Office of Management and Budget.
Karlan then moved on to Article II and the Executive Branch. She began by discussing the creation of the Department of Government Efficiency (DOGE), an entity purportedly created to combat waste, fraud, and abuse in federal spending. “But as earlier alluded to, Congress and prior presidents had already created a host of mechanisms for dealing with waste, fraud, and abuse. Consider the Office of Inspectors General again.”
Prior to the recent targeting of the inspectors general, explained Karlan, these nonpartisan and qualified professionals statutorily required to report to Congress actually did issue dozens of reports, identified millions of dollars in “questionable costs,” and obtained convictions, disciplinary actions against government employees, and millions of dollars in recoveries. And as Karlan noted, there are actually statutory procedures for terminating the inspectors general with adequate notice, but the president disregarded them here.
“I think this failure is really quite telling. The president is taking the position that he can simply disregard laws he doesn't like and that he doesn't need to provide any notice to Congress of his plans while he works to substitute an entirely unaccountable new entity for a long-standing statutory mechanism.”
Although perhaps the most illuminating, the example of DOGE is not the only evidence of the president’s intentional drift away from accountability. Soon after the firing of the inspectors general, the president also fired the head of the Office of Government Ethics, the primary enforcer of conflicts of interest laws against high-ranking officials. Next was the sacking of the head of the Office of Special Counsel, which investigates whistleblower reports from government workers, followed by many more firings of individuals in key accountability enforcement roles.
Completing the president’s attack on accountability is the “muzzling [of] another of the accountability devices built into the Constitution through the First Amendment, namely, a free press.” The recent decision to ban the Associated Press from the Oval Office, ostensibly for continuing to name the Gulf of Mexico in its reporting by this traditional name, Karlan argued, is just another example of “a pattern of intimidati[on] and retaliati[on] against news organizations that don't fall in line with the president's agenda.”
Little salvation can be expected from Article III and the Supreme Court, in Karlan’s telling. “In 1982, the Supreme Court held in Nixon v. Fitzgerald that a president is immune from damages liability for his conduct, and in 2024, the court extended at least presumptive immunity against criminal liability to presidents for any official actions [in Trump v. United States].” Furthermore, the Supreme Court has abdicated its role in holding other branches accountable through the “evisceration of the Bivens remedy,” its suggestion for the elimination of the implied right of action in the Voting Rights Act, and most recently, its holding in Alexander v. South Carolina State Conference of the NAACP that “naked partisanship is a defense to a constitutional claim because [it] is consistent with…a presumption of legislative good faith.”
“So what is to be done given this firestorm of unaccountability?” posited Karlan as she began her concluding remarks. “It's up to the people,” a solution for which we as lawyers owe a particularly potent duty. Alluding to C.S. Lewis and Hannah Arendt, Kaplan called out the often observed “temptation for very bright people to enter organizations and lose their moral compass as they start to justify the actions of the organizations they've entered.” But upon entering these “inner circles” as so many faculty and students at UVA Law will do, we must resist these temptations and respond with agency and integrity when “asked to support policies or make arguments that you think can't be squared with the oath you took to support the Constitution,” reflected Karlan.
“The lesson is to learn again how to do something that you knew well when you were two years old. And I'm sure your parents will remember if you ask them. The two things are saying ‘no’ and ‘I won't’.”
[1] And previous UVA Law professor from 1988-1998.
[2] Article VI, cl. 3: “The Senators and Representatives…shall be bound by Oath or Affirmation, to support this Constitution….”
