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.