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Nelson Tebbe nelson.tebbe at brooklaw.edu
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Adam Winkler winkler at ucla.edu
In his elegant book, Practical
Equality: Forging Justice in a Divided Nation, Robert Tsai urges egalitarian
lawyers and judges to respond to political polarization by compromising. When
they find themselves unable to attain ideal equality, as they often will, lawyers
on the left should embrace constitutional concepts that can do some of the same
work while winning enough agreement from the other side to be implemented. Practical
substitutions for principled equality can include procedural due process,
rationality review, the prohibition on cruel and unusual punishment, and free
speech.
Compromise
can be justified for all the reasons Tsai suggests. Although the solutions it
enables are nonideal, they may be preferable to stalemate and therefore permissible
or even obligatory in the real world, all things considered. Moreover, as Tsai
notes, settlement can lower the temperature of conflict. And finally, second-best
solutions can sometimes pave the way for first-best solutions.
Yet egalitarians
could respond to opposition in another way—they could dissent. That option
receives less attention in Practical Equality, but it ought to be
considered as an alternative to concession under certain circumstances. I offer
this amendment in an appreciative review of Tsai’s book that is forthcoming in Constitutional
Commentary.
Constitutional actors in a
polarized political environment sometimes take positions not simply to
articulate principles that can inform an eventual compromise, but also to widen
the window of acceptable interpretations or else to shift that window in a
favorable direction. They may make assertive constitutional arguments even
though they know that doing so will decrease the likelihood of success in the
near term because they believe that staking out such stances will increase the
probability of favorable outcomes in the medium term. Manipulation of the
Overton Window can be especially potent where it is patterned and asymmetric.
When an opponent is engaging in tactics like these, concession may be
self-defeating. Instead of moving government policy in the direction of justice
or lowering the temperature of conflict, it may embolden inegalitarian constitutional
arguments.
This dynamic
can characterize appellate courts, which are Tsai’s central concern (though
often he addresses lawyers arguing before them rather than judges themselves). Egalitarian
judges who find themselves in the minority on a question of equality may be
faced with a choice: they can join the majority (or concur separately) with the
hope of mitigating an otherwise extreme result, either in the instant case or
in a line of future decisions. Or they can dissent. Which option is best sometimes
can be discerned only by performing a complex calculation that includes the
degree and value of concession from the other side, the likelihood of
prevailing in the long run, the size and strength of the majority, and other
factors. Calculations may also be specific to particular subject areas; Micah
Schwartzman and I are in the process of constructing one
such evaluation concerning the Establishment Clause.
In sum, dissent deserves
consideration alongside compromise as an option that can be preferable for jurists
on the left who find themselves unable to achieve ideal justice. Compromise has
a cost that should not be overlooked: it can make the ideal constitutional
interpretation look extreme or radical, and it thereby can facilitate a movement
or expansion of the window of acceptable legal positions away from
egalitarianism. Where some or all of the Supreme Court’s more liberal members
join a second-best opinion, for example, they can frame the first-best solution
as unreasonable or immoderate. And that can have deleterious ramifications for
future cases and for important constitutional disputes outside courts.
Of course, this analysis only holds
where judges prefer a principled outcome that they cannot achieve—where they
face a strategic choice between concession and confrontation. It doesn’t
pertain in the same way when they view the majority outcome as ideal, in other
words. Moreover, I am leaving to one side Tsai’s distinction between practical
equality and appeasement, which he strongly rejects. Tsai seems to acknowledge
that judges should dissent rather than appease, as he defines that term. My
question is whether they should take a stand in some other situations as well.
In a reply that is also forthcoming
in Constitutional Commentary, Tsai offers several thoughtful reactions.
First, he argues persuasively that “the goal of relieving suffering should be
paramount.” Where an egalitarian judge faces a choice between relieving some
measure of injustice by joining the majority and defending an ideal solution in
a dissent, “it’s worth sometimes giving up that ringing dissent.” I agree. My
only point is that foregoing a dissent has costs that should be included in the
calculus, which then can become intricate. Judges should consider the
possibility that embracing a second-best solution, rather than objecting, could
embolden aggressive opponents.
Where I may differ from Tsai is on
the quality and quantity of the costs of compromise. In his reply, Tsai
suggests that dissents derive their force from the persuasiveness of their
arguments, not from the number of votes they attract. Tsai has in mind the
image of Justice Harlan in Plessy
“stand[ing] alone against the tide of popular opinion and the collective
judgment of his own colleagues.” But in our everyday world, the vote count does
seem to matter. For example, the fact that Masterpiece Cakeshop was 7-2
rather than 5-4 is repeatedlyhighlighted to lend
credibility to its outcome. To say that the size of a dissent never has
consequences for the shape of the constitutional culture strikes me as not
quite right.
Dissenting can have drawbacks too,
as Tsai rightly observes. A “strong, accusatory dissent” may extinguish any
possibility of compromise during the process of debate among justices,
perhaps even causing the majority to draft a more strident opinion. That must
be correct, and it is of course the probable reason that Justices Breyer and
Kagan joined the majority in Masterpiece—to help shape a more palatable opinion.
Furthermore, Justice Kagan wrote separately to further influence its
interpretation. My narrower argument is simply that sometimes that strategy
will backfire, as in situations where the majority is seeking to widen or shift
the window of constitutional acceptability, and that it comes with the cost of
isolating any remaining dissenters.
Ultimately, Tsai and I agree far
more than we disagree. (Not surprising, given that we have written together.) If
there is a dispositional difference between us, it is that Tsai is sanguine
about the promise of compromise in an era of pitched political and
constitutional conflict, whereas I worry that we are experiencing a more
fundamental destabilization
and rearrangement of the constitutional order that calls for different
tactics. Of course he is right that oftentimes agreements must be struck to
ameliorate the suffering of the people who are immediately affected. But
conceding incremental cases may also have structural and longstanding effects
that we can only dimly appreciate.
Nelson Tebbe is Professor of Law at Cornell University. You can reach him by e-mail at nt277 at cornell.edu