Equality’s Understudies

Abstract

Robert L. Tsai’s Practical Equality: Forging Justice in a Divided Nation proposes to discard equality as an otiose criterion for legal and political strategy. The idea is at once surprising and provocative. That it should come from a respected and accomplished progressive scholar is even more noteworthy. I critique Tsai’s claim by evaluating his use of equality and the adequacy of his proposed understudies. None of these understudies, I suggest, can do the salutary work Tsai hopes. In particular, I argue that the failures of human sympathy that consistently undermine the progressive equality project will equally puncture the proposed understudies. A final, brief conclusion reconsiders how equality might be analyzed and deployed as a regulative ideal in modern American politics and law notwithstanding Tsai's well-founded concerns.

Keywords: equal Protection; equality