Law Professor Robert Tai's newest book surveys constitutional law and policy as a self-identified pragmatic egalitarian. In its simplest form this means someone committed to principles generally associated with the Fourteenth Amendment Equal Protection Clause who is willing, as needed, to press other, sometimes lesser, means of accommodating judicial consensus. Practicality implies sometimes settling for half-measures that move policy in a desired direction. Tsai presses his practical approach in the political circumstances in which we presently find ourselves, with a judiciary increasingly stacked by the Trump administration, including especially tilting the already conservative Roberts Court further right. Tsai’s central claim is that, in general, accepting partial victories based on equality-supporting alternatives is better than insisting upon a singular approach that is apt to fail.
In separate chapters, Tsai applies his thesis across a broad host of domains, from early constitutional caselaw to ripped-from-the-headlines current political events—abortion rights, dreamers, sanctuary cities, and more. Along the way, Tsai considers such alternatives as enhanced procedural safeguards; fuller rationality review; heightened protections against cruel and unusual, or disproportionate, punishment; and protection of speech or expression. In each instance, the alternatives perform at least some of the work of furthering equality.
Professor Tsai’s book can be read to target two audiences. First, as a call to arms, he speaks to political activists and various non-academic elites, the sort who attend book readings (Professor Tsai has held a remarkable number) and who consume serious non-fiction. Second, he is speaking to other academics, most notably law professors, political scientists, or historians. As is often the case with cross-over books, this one is likely more successful for the first audience than the second, even as I learned quite a lot while reading it. Academic audiences tend to be burdened with backstories and analytical frames of reference that challenge the cross-over genre.
Before offering some examples, it is helpful to consider what I’ll describe as the author’s implicit jurisprudence, one that derives from the many examples he offers, but without being expressly stated as such. Professor Tsai finds congenial the sort of jurisprudence often associated with Justices Anthony Kennedy, Stephen Breyer, and David Souter. Although none are entirely consistent in this regard (justices rarely are), each tends to treat Supreme Court decision making not unlike ordinary common law processes. Such jurists are comfortable with fact- or case-specific resolutions that avoid clear rules.
Justice Kennedy is particularly notable because he rather clearly embraced a practical egalitarian view regarding same-sex marriage. For several years, constitutional commentators speculated whether the mechanism by which the Court would vindicate the right of same-sex couples to wed (a result that seemed foreordained) would be to classify sexual orientation as a suspect class (as with race), a quasi-suspect class (as with gender), or instead non-suspect coupled with an “animus analysis” using rationality review. This technical sounding characterization grows out of the Supreme Court’s tiers of scrutiny doctrine, which, more or less, considers categories of legislation for particular levels of judicial scrutiny based on the nature of the legislative classification. Kennedy was widely regarded as the critical justice needed to create the same-sex marriage right, and he seemed to have tipped his hand in two earlier cases, the first involving a Colorado initiative disallowing sexual minority status as a basis for protection under state and local anti-discrimination laws, and the second involving a Texas criminal ban on same-sex sodomy. Although Kennedy was less precise in the Texas case, both opinions, fairly construed, rested on the intuition that even under basic rationality review, animus against a politically unpopular group can never form a legitimate justification in support of a law.
The problem for Kennedy, however, was that with respect to same-sex marriage, and perhaps also as a committed Catholic, he did not wish to label those who held sincere religious scruples against the practice as necessarily or inherently bigoted. He also wished to avoid treating sexual orientation as the Court treats race or gender. As a consequence, Kennedy eschewed a tiers framing, producing a favorable holding, albeit with little or no doctrinal guidance. This seeming practical approach effectively treats Supreme Court decision making as on par with common law making in, say, a state superior court. We learn the case results, and we leave to others the task of reconciling them. Except here, unlike with an actual state superior court, no higher court is available to ensure doctrinal consistency or to offer clearer guidance.
Tsai also commends the notable opinion by Justice Ruth Bader Ginsburg striking the men-only admissions policy at the Virginia Military Institute (VMI). In that case, Justice Ginsburg applied intermediate scrutiny, the test associated with gender-based classifications, but she hit upon the problem that under standard analysis, state policies premised on real-sex differences, as opposed to overbroad generalizations about the sexes, get sustained. Justice Ginsburg implicitly recognized this, and she responded by ratcheting up the test in ways that made it appear increasingly like strict scrutiny, the test used when assessing racial classifications. Specifically, Ginsburg placed the burden on VMI to prove a contemporaneous and exceedingly persuasive justification for the school’s policy, dating to 1839. This created the anomaly of requiring that Virginia defend a choice of failing to provide a separate-but-equal program for women at a time when clearly no such obligation existed, and almost 150 years before the Supreme Court signaled a presumably prospective constitutional requirement to do so.
Although Professor Tsai, once more, commends the ruling on practical egalitarian terms, he neglects to observe that just five years later, in Nguyen v. INS, Justice Kennedy issued another gender ruling in which he entirely abandoned Justice Ginsburg’s modifications to intermediate equal protection scrutiny, restoring the prior version, and sustaining an admittedly problematic law arguably premised on real-sex differences. My point is certainly not to criticize the same-sex marriage holding or to defend Nguyen, but rather, it is to suggest that when the Supreme Court issues rulings in such a fact- or case-specific manner, one that mirrors that of an ordinary common law court, a consequence of the resulting pragmatism is to render the holdings more vulnerable than when justices pay particular attention to the obvious fact that the court on which they sit is anything but.
My second concern with practical egalitarianism is more theoretical. Throughout his book, Professor Tsai implies that by reframing with alternative labels, eschewing or supplementing a formal invocation of equality, advocates are apt to succeed in changing jurists’ minds and, along with that, judicial outcomes. I’m skeptical. As an illustration, Tsai presents NAACP v. Button, a case that protected the disclosure of membership lists based not on equality but on free speech. Originally, the Court appeared poised to uphold the law, yet as Tsai observes, fate intervened, producing a replacement of two justices who supported the law with two others who did not. Although the Court relied upon on free speech, rather than equal protection, the controlling variable, almost certainly, was the change in judicial personnel, not how the argument was framed.
When teaching constitutional law, I sometimes identify doctrinal tensions among cases by demonstrating that applying a framing in Case A to Case B, or vice versa, logically generates opposing results in both cases. Students sometimes misperceive the take-away as suggesting that the lawyers were inadequately creative in pressing their client’s claim—if only they had thought to raise the other argument! But the point is actually opposite. The justices, and the lawyers, are generally well aware of the available arguments, and most of the time, jurists line up over the judgment regardless of which doctrines they are called upon to apply. Supreme Court Justices are nothing if not creative in distinguishing cases that went before and in constructing helpful analyses across multiple doctrines.
This returns to where I began: If practical equality involves encouraging lawyers to present novel arguments, I fear it is unlikely to change terribly many jurists’ minds. But I don’t read the book that way, or at least only that way. There’s no doubt that Professor Tsai is an eminently sophisticated student of the Supreme Court. Rather, his argument succeeds best when pressed to broaden the public appeal of the numerous legal and political injustices that Tsai passionately describes in his book by widening the lens of practical impediments to equality beyond equality itself.
One final cautionary note is that the pragmatism aspect of practical equally can equally be deployed by those holding views contrary to Professor Tsai. If nothing else, the past few years have demonstrated the ample pragmatism of conservatives, willingly lining up behind a successful presidential candidate to effectuate various desired ends despite the rather obvious lack of their selected leader’s personal merit or moral authority. There is ample reason to fear that liberals are less adept at staying on mission. Although it is not a panacea, admonishing readers to broaden the appeal to equality, both on its own terms and also based on commitments to process, fairness, and speech, is not only pragmatic; it is compelling. And just maybe it will help pull along some who strayed by encouraging them to reconceive their understanding of egregious injustices.
This is a fine book authored by a compassionate an empathetic scholar who is seriously focused on the harms suffered by disadvantaged individuals and groups. I enjoyed it, and I expect many of my readers will also.
I welcome your comments.