Social Justice Conflicts in Public Law

Abstract

“Social Justice” is everywhere in public law.  Scholars and activists are calling for racial justice, climate justice, and health justice, among other claims.  When commentators speak about multiple different social justice claims, it is often through an intersectional lens that views these claims as co-constitutive with one another, such as, “There is no climate justice without racial justice.”  These justice claims are important and long overdue.

But conflicts between different social justice claims – what this Article calls “justice conflicts” – are inevitable in policymaking.  Justice conflicts occur when the multiple social justice claims involved in a policy issue point to opposing outcomes that cannot be reconciled with each other.  The Biden Administration has prioritized social justice and begun to address how agencies should evaluate various social justice claims in policymaking.  While an exciting first step, their initial actions do not give clear guidance to agencies.  As a result, political institutions often resolve justice conflicts through nontransparent political decisions, which ultimately harms affected political communities.

This Article argues that political institutions should embrace “mid-level justice principles,” which are principles of justice apply across different policy domains and provide standing moral reasons to justify certain policy outcomes.  Until now, public law has primarily embraced only mid-level procedural justice principles, such as consultation requirements and regulatory impact analyses.  While helpful, these procedural measures do not provide substantive guidance.  Mid-level justice principles fill this gap.

Political institutions have implicitly adopted some mid-level justice principles in an uneven fashion.  However, this Article provides multiple ways for Congress, the President, and agencies to explicitly institutionalize mid-level justice principles to provide procedural flexibility and substantive content to guide policymaking.  Importantly, political institutions adopting mid-level justice principles provides an appealing mechanism to consistently and transparently analyze nonquantifiable normative values, which has thus far perplexed regulators, as well as both proponents and skeptics of cost-benefit analysis.  Problematically, the Supreme Court has increasingly inserted itself as the institutional arbiter of social justice claims.  The Court’s assertion of its primacy to evaluate justice conflicts should be resisted on democratic and epistemic grounds.  Instead, what this Article calls “democratic policymaking,” which occurs via Congress, the President, and agencies, should be the primary site to resolve justice conflicts in our society. 

Keywords: social justice, racial justice, economic justice, climate justice, environmental justice, reproductive justice, energy justice, constitutional law, administrative law, judicial review, justice conflicts, mid-level justice principles, separation of powers