Equality is a Brokered Idea

13 Pages Posted: 13 Aug 2019 Last revised: 8 Nov 2019

See all articles by Robert L. Tsai

Robert L. Tsai

Temple University - Beasley School of Law, Clifford Scott Green Chair in Law Visiting Professor of Law; American University, Washington College of Law

Date Written: August 10, 2019


This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie had a major consequence: Republican officials could not follow through on their apparent scheme to engage in partisan entrenchment by depressing census responses from Hispanic citizens and undocumented migrants. I defend this creative effort to manipulate the political value of time and characterize the Court's invocation of the rule of reason as an effective substitute for the principle of equality under the circumstances. Drawing on my new book, PRACTICAL EQUALITY (Norton 2019), I also put the strategy in jurisprudential context among past instances where reason ended up being the grounds for a consensus when an equality issue seemed intractable.

Keywords: Practical Equality, SCOTUS, Supreme Court, jurisprudence, law, equality, census, politics

Suggested Citation

Tsai, Robert L., Equality is a Brokered Idea (August 10, 2019). George Washington Law Review Arguendo, Vol. 87; American University, WCL Research Paper No. 2019-28; Temple University Legal Studies Research Paper No. 2019-33. Available at SSRN: https://ssrn.com/abstract=3435156

Robert L. Tsai (Contact Author)

Temple University - Beasley School of Law, Clifford Scott Green Chair in Law Visiting Professor of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

American University, Washington College of Law ( email )

4300 Nebraska Avenue, N.W.
Washington, DC 20016
United States
202.274.4370 (Phone)

HOME PAGE: http://www.wcl.american.edu/faculty/rtsai/

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