Equality Versus the Right to Choose Associates: A Critique of Hannah Arendt's View of the Supreme Court's Dilemma

46 Pages Posted: 5 Nov 2011  

Marie A. Failinger

Mitchell Hamline School of Law

Date Written: January 1, 1987

Abstract

The Supreme Court has difficulty framing a rationale for preferring the right to equality over the right of freedom of association when these values clash in cases such as school desegregation. The controversial philosopher, Hannah Arendt, attempted to reconcile the tensions between these rights in an article concerning the famous school desegregation episode in Little Rock, Arkansas. The author here explores Arendt’s analysis of school desegregation in order to probe the Supreme Court’s justifications in right to association/equality cases. This article first discusses the Supreme Court’s view of association as a fundamental right and criticizes the Court’s assumptions and justifications for protecting that right. Next, the author probes Arendt’s analysis of the right of association and explains the parallels between Arendt’s and the Court’s reasoning in the right to association/equality cases presuming the ultimate goal to be diversity. Finally, the author describes Arendt’s theory of equality in an attempt to explain why Arendt prefers associational rights over the equality principle. The author concludes that if the ultimate constitutional commitment is to societal diversity, discrimination by groups must proceed from “political” speech and action and must be based on the distinguishing actions and speech of the outsider before they can be entitled to constitutional preference.

Keywords: right of association, school desegregation, Hannah Arendt, equality cases, fundamental rights, societal diversity

Suggested Citation

Failinger, Marie A., Equality Versus the Right to Choose Associates: A Critique of Hannah Arendt's View of the Supreme Court's Dilemma (January 1, 1987). University of Pittsburgh Law Review, Vol. 49, p.143, 1987. Available at SSRN: https://ssrn.com/abstract=1929477

Marie A. Failinger (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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