Friday, November 01, 2019

How Do We Measure Good Progress?

Guest Blogger

For the symposium on Robert TsaiPractical Equality: Forging Justice in a Divided Nation (Norton 2019).

Robert Tsai

            My thanks to Mark Graber and Jack Balkin for hosting this Balkinization symposium on my new book, Practical Equality. My special appreciation for the close read of the book by Mark, George Thomas, Susan Burgess, and Nelson Tebbe. In this post, I’ll respond to their thoughtful critiques and offer a few clarifications.

            Practical Equality argues that progress on equality has been achieved not only through consistent advancement of powerful, ideologically consistent conceptions of what equality demands, but also through ingenious efforts to turn to other ideas to do egalitarian work when significant obstacles are encountered. Some of those ideas overlap with equality—such as fair play, anti-cruelty, and free speech—and some concepts are not obviously about equality at all, such as the rule of reason. In a forthcoming online essay for George Washington Law Review called “Equality is a Brokered Idea,” I defend Chief Justice Roberts’s apparent switch in the census case as an example of practical equality—in that case, deploying the rule of reason effectively to resolve a dispute so as to satisfy serious egalitarian concerns when traditional methods (and in that particular case, procedural difficulties) stand in the way.

What I’ve begun to elaborate in the book and elsewhere is a theory of the second-best, recognizing that justice requires us to toggle between two theories at once: some robust notion of the good life and some account of what we are willing to live with temporarily, and even call good progress, on the way to some better place.

            George Thomas is absolutely right to observe that Practical Equality is grounded in the necessity of settling for less. Compromise is an inescapable feature of constitutional law and politics, though there are reasonable agreements that can be reached and what I call “tragic precedents” we should avoid, and even though the effects of compromise in different domains of life can vary. It all starts with power. Being amenable to second-best solutions is a condition of democratic life because, as Thomas cogently points out, we live under “a constitution that intentionally divides power while fostering a pluralistic society.” Our system allows a majority to govern according to its preferences most of the time, though not always exactly in the precise form that a majority’s policies might originally take. Minorities, too, have to settle for less than they might prefer because they lack raw political power and because even when it comes to fundamental rights, those rights are dependent upon the integrity and good will of others to enforce them—and the people empowered to do so usually come from the majority.

There are also certain non-design factors that make compromise a precondition to progress, even when justice is our object. The truth is, we come from different backgrounds, worldviews, and experiences. Technological advances in recent years have solidified the siloed fashion in which we receive information, instead of breaking down ideological barriers, but that development hasn’t altered the underlying necessity of compromise. Individuals do change their minds about specific policies, but if a legal or political victory depends on convincing large segments of citizens to fundamentally call their own worldview into question, that is a project that is almost certainly doomed to fail. Even if these kinds of transformations are possible (e.g., via a national anti-racism education project), such an enterprise would require years, if not generations, of overlapping conversations before inroads can be made. In the meantime, we have to find ways to reduce the unequal burdens borne by some segments of society.

This brings me to Susan Burgess’s provocative entry in the symposium, which reminds us that perfectionist projects treat everyone as pieces of clay to be molded in a society’s self-image, and that makes ill-fitting populations even more vulnerable. Accepting pluralism as a baseline condition of justice leaves places for social misfits and persistent losers in the game of politics to go, where they might escape the relentless cultural demands of law. She’s right that pluralism aids liberty. It also goes hand in hand with autonomy. Practical Equality takes the need for pluralism seriously. It asks: how do we make progress on equality given our deep commitments to liberalism and pluralism? The answer I give is that we can do so only by making it a priority to appreciate the disproportionate harms that minorities experience, by expanding our toolkit for doing justice, and by relaxing the metrics by which we measure progress.

Professor Burgess calls my approach “incremental liberalism.” I embrace the label of liberal pluralism but wish to clarify that although we share some starting points, the approach I take is not to be confused with a full-throated defense of incrementalism, such as Cass Sunstein’s theory of minimalism, or Alexander Bickel’s enthusiastic support for the “passive virtues” in The Least Dangerous Branch. I consider those to be theories of judicial review, and in that sense, arguments favoring a limited role for judging, or perhaps an argument to always reach for the lowest common denominator when a compromise is possible. Practical Equality is not preoccupied with the so-called counter-majoritarian difficulty and is therefore not a theory designed to try to solve it. It is a supplementary theory that emphasizes arguments, opportunities, habits, and mindsets that are conducive to justice. That means there may be times when more expansive notions of rights can find traction, and I would not object to robust judicial engagement on democracy’s most pressing issues simply due to some pre-commitment to an ideal that valorizes small steps. For me, the scale of the injustice determines the scale of the response that may be warranted.  

            Professor Thomas doubts that Practical Equality has much to say to conservatives, but I think that it’s possible for non-progressives who believe in equality to come away from the book with something useful. Many of the outcomes that I defend on egalitarian grounds are ones that conservatives will also endorse. We might disagree about judicially-enforced LGBT rights or perhaps the VMI decision, but most conservatives today abhor intentional discrimination and racially terrifying law enforcement interrogations and other tactics like racial profiling. Some, though perhaps not all conservatives, will appreciate my take on the president’s Muslim travel ban, and most will discover more than one reason to think that the nineteenth-century cases helping Chinese migrants resist racist and economic oppression by local authorities were rightly decided. I’m betting that they’ll also agree it’s important to allow individuals to speak freely about religious matters, immigration, and even overtly racist ideas—all of which I say not only promotes liberty, but also, if handled well, can foster equality.

Conservatives come to questions of equality with different instincts and commitments than progressives: they are more likely grounded in religious conceptions of the good life, more open to arguments about economic opportunity, more skeptical about the aggressive use of law to advance social projects, more worried about unelected judges sweeping away traditions and causing political backlash. But while it may be harder for progressives to reach conservatives with direct appeals to equality, especially based upon grand conceptions of that principle, it has been possible historically for egalitarian gains to be made by resorting to other arguments like fairness, the rule of reason, and free speech as work-arounds. And insofar as conservatives are currently re-purposing other concepts like free speech and fairness to combat broad conceptions of equality or insisting that the state not discriminate against religious communities simply based upon fearful (and possibly erroneous) assumptions about their beliefs, they are already doing the work of equality by other means. Practical Equality in that sense theorizes the behavior of conservatives and shows that their legal strategies mirror what progressives have done in other eras.

I don’t render a global judgment about these efforts (i.e., these are all good or all bad) because I think there’s some room to disagree about the bottom line—namely, whether in each instance the outcome shakes out to be egalitarian or not—and because we would need more to work with in order to make that judgment, a firmer commitment to some conception of equality beyond what I’ve sketched. My primary goal, for now, is to show where the room for compromise in the name of justice might lie—compromise not in some mealy-mouthed centrist sense, but in a way where progressives can occasionally win the support of institutional or social conservatives for their causes. For conservatives who might have qualms about large-scale projects of reformation, it might be comforting to know when and where past conservatives have been willing to join forces with more liberal colleagues to promote a just society.

Now the rub, of course, is figuring out when to take a deal and pronounce it a good one, and when to walk away and denounce the proposal. How do we tell a good deal from a bad one? In the book, I invite readers to think about first-best versus second-best solutions, and to do so by keeping in mind the imperative of ameliorating tangible, unequal harms. We should prioritize injury reduction over maintaining ideological purity or based on overly contingent calculations of negative consequences that might not bear out.

Just as equality minimalists can overestimate the risk of majoritarian backlash or the devastation of institutions, so too equality maximalists can sometimes shy away from acceptable compromises for fear of dampening progress. Along these lines, both Nelson Tebbe and Mark Graber worry that compromising on matters of equality can hamper conversations about equality and perhaps derail more ambitious projects. Tebbe couches his concern in terms of enlarging the window for reasonable debate, and he insists upon the need for judicial progressives to stake out firm positions when a particular dispute is lost, in order to keep that window open for as long as possible. Graber worries that by going after “low-hanging fruit,” progressives could be unwittingly “sanitizing inegalitarian practices even as they avoid legal lock-ins by keeping broader legal questions open.”

While I do think that judicial action can have a problematic effect on politics, that effect will depend on a range of things including: whether judges are vindicating rights or rejecting them, what they say about power, how broadly judicial rationales are, how committed and resourceful activists are, and how conducive political and social conditions are to legal change.

All else being equal, judges that vindicate rights or government powers broadly will tend to have a larger impact on politics. “Sweeping defeats,” to borrow Professor Thomas’s words, must be avoided at all costs. On the other hand, a narrower vindication of rights or powers will tend to create a smaller obstacle to politics. In other words, it matters enormously what is being “locked-in,” who is being affected, and how activists respond. On some issues with no natural constituency or national advocacy group, we should assume the downsides from lock-in would be greater, particularly if what’s locked-in takes away a tool that is useful to progressives.

But in a number of instances I discuss, where the choice is between vindicating a rights-claim using one rationale versus another, winning on one ground doesn’t have to take that other option away and it doesn’t “sanitize” an inegalitarian process. It all depends on how this is handled. So, for instance, if judges put racially abusive interrogations off limits to police on due process grounds rather than equal protection grounds, it doesn’t mean you can never make equality arguments—you can still make those arguments in the political realm and, because they haven’t been extinguished by judges in a tragic precedent, you can even keep pressing them in court. What the move accomplishes is to reduce immediate harms by foregrounding the systemic and dignitary interests temporarily over the socially fraying effects of unequal policing. That’s something that activists can build on in political discourse and future litigation, especially given the overlap between ideas of equality and fairness. 

But what if, during a particular dispute, efforts to substitute one concept for another fails to convince others to join, how should someone—especially a progressive judge—behave? That’s the issue Tebbe has homed in on. In general, a judge’s choices are: defer (find ways to table hard questions when the time is not right), appease (meet substantive objections halfway), undermine (join the majority in a close decision in an effort to narrow its scope), and repudiate (dissent and perhaps continue to undermine its legitimacy).

I have a more modest sense about the capacity of judges alone to keep legal ideas socially plausible, but I think Tebbe’s basically right that at some point it makes sense for a progressive judge to take a stand, or what we might colloquially describe as “go down swinging.” Repudiation makes sense when efforts to defer have failed, appeasement will lock-in something terrible by giving the outcome an imprimatur of overwhelming victory, and a narrowing strategy is ruled out. Dissenting can be like firing a cannon, announcing to the world that the politics of repudiation ought to commence, and signaling to activists that those in dissent will be allies in such efforts.  

Graber cites the death penalty context for evidence that emphasizing process can get in the way of a substantive objection to capital punishment. But he neglects to point out the historical context in which fairness arguments suddenly found traction: only after the Supreme Court seemed to have gone a little too far in its death penalty jurisprudence, reading the Eighth Amendment’s cruel and unusual punishment clause so broadly as to put laws at risk nationwide. A majority of justices then reassessed and retreated into a defensive crouch but without abandoning the field of action. Seen in that light, arguments grounded in procedural fairness arguably kept alive concerns about justice in that domain during an increasingly conservative time.

It’s probably true that tinkering with the machinery of death during this period legitimated it for a time, as Justice Harry Blackum so eloquently asserted, but I wouldn’t be so certain that the emphasis on procedure stalled activism. If anything, activists poured their energies into Sixth Amendment, Due Process, and targeted Eight Amendment claims, pushing more procedures and showing how unjust outcomes could still occur. Capital punishment has been made more reviled in recent years not because of newfound acceptance of the immorality of killing, but because of documented proof of errors and racism in the administration of the death penalty even after communities have spent enormous resources trying to guarantee legal accuracy—something that wouldn’t be possible now without decades of emphasis on dignity through fair play, and technological progress that has allowed activists to exploit those lines of argument. In other words, we might be on the brink of abolition in part because of the success of fairness arguments, rather than in spite of them.

The fight for same-sex marriage also offers a great reminder that fears of compromise can sometimes get in the way of justice. Recall the moment when civil unions became possible in some states. Should friends of equality endorse civil unions? The fear of cementing disparate social connotations of two different institutions was a realistic one. On the other hand, civil unions solved the immediate problem of unequal rights and benefits. Moreover, the fact that some states, like Delaware and Massachusetts, initially opted for civil unions didn’t impair the debate over same-sex marriage or ultimately take the steam out of constitutional politics toward that end. Quite the contrary: seeing tangible evidence of visible, healthy, loving same-sex couples in legally-sanctioned relationships underscored the importance of empiricism to cutting through ideological gridlock. It may have been hard to gauge these deliberative benefits ahead of time. But those material improvements offered a powerful testament to their continuing demands for a more robust form of equal respect. The point isn’t that civil unions was the right answer and saying no to civil unions was the wrong answer. The point, instead, is that these dilemmas are always with us and we all have to make tough calls about what approximates justice based on imperfect information.

Robert Tsai is Professor of Law at American University. You can reach him by e-mail at rtsai at

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