Vol. 29 No. 6 (July 2019) pp. 59-62PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION, by Robert L. Tsai. New York: W.W. Norton & Co., 2019. 288pp. Cloth $27.95. ISBN: 978-0-393-65202-4.
Reviewed by Timothy Zick, William & Mary Law School. Email: tzick@wm.edu.
In his new book, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION, Robert Tsai passionately and eloquently addresses a timely and critically important question: “What is to be done to confront injustice when the timing doesn’t seem right or the odds appear to be stacked against you?” (p. 3). As I read his response, an iconic Rolling Stones lyric came to mind: “You can’t always get what you want. But if you try sometimes, you get what you need.” Tsai’s book, which is rooted in pragmatic theory and action, applies this bit of classic wisdom to America’s enduring struggle to achieve equality. He has written a guide for achieving equality by other means. “Practical equality” is an approach and set of principles by which we can achieve something close to equality, even when we strongly disagree about what equality entails and the prospects for equality are otherwise dim.
Equality is a venerable legal and moral principle and treating likes alike is a pillar of any just society. However, history contains countless examples of society’s failure to live up to its soaring promise: slavery, racial and other forms of discrimination, internment of Japanese-Americans during World War II, abuse of suspects at the hands of police, and the disenfranchisement of millions of convicted felons, to name just a few.
That’s the bad news. The good news is that history also contains many examples of achieving equality by means other than the enforcement of formal rights of equality. Even when judges and other actors have had a difficult time agreeing on what equal treatment means or whether officials have actually provided it, they have often been able to forge a consensus around equality-related principles: the individual right to fair processes, rational decision-making, humane treatment, and freedom of expression.
Tsai devotes separate chapters to each of these alternative means of promoting a more egalitarian and just society. In his thorough analysis he describes a variety of contexts in which activists, policymakers, and courts have resorted to these methods and principles in situations where the prospects for achieving equality seemed very bleak if not hopeless. The examples he cites include courts using fair process rules to remedy mistreatment of suspected criminals, rationality principles to invalidate discrimination based on disability and sexual orientation, anti-cruelty principles as a basis for rejecting imposition of the death penalty for juveniles and persons with severe intellectual disabilities, and the right to free expression to facilitate a variety of racial and other equality movements.
Tsai refers to these as “equality-friendly alternatives” (p. 9), a “backup plan” (p. 10), “techniques” for achieving equality (p. 11), and “tools to advance the cause of equality” (p. 12). The language highlights the pragmatic nature of “practical equality,” or, “equality by other means.” Tsai anchors his approach in the work of esteemed pragmatists such as John Dewey, Charles Sanders Peirce, William James, and Louis Brandeis. He describes “practical equality” as an “older, holistic approach to politics and law that is at once clarifying, action-directed, and humanistic” (p. 38). Tsai views practical equality as a “problem-solving method with some rules of thumb” (pp. 38-39). He emphasizes, in particular, the need to focus on empirical realities and be flexible in terms of developing arguments and finding solutions. Do not shy away from second-best solutions, Tsai advises, and never let perfection be the enemy of the good enough. Rather than delay equality or appease those who would deny it, Tsai encourages actors to engage in strategic activities – rhetoric, activism, litigation, and judicial opinion writing – that can produce equality or near-equality without the need to [*60] resort explicitly to the language and substance of equality rights.
One might reasonably ask why we must take these back roads to equality when policymakers have constructed constitutional and statutory avenues to reach this destination. As Tsai explains, several factors complicate the direct enforcement of equality rights. First, in any given context, it can be difficult to achieve consensus on what equality entails. This is particularly true in cases involving challenges to the distribution of important social goods. Second, equality claims express moral judgments about individuals and officials. Although it may feel good or even righteous to call out bigotry or racism when we witness it, Tsai argues that speaking in these terms can lead to political and social impasses. The rhetoric of equality can distract the parties from the goal of achieving justice in the case at hand. Third, to make a successful claim of discrimination under the Fourteenth Amendment’s equal protection clause, for instance, a person must allege and prove that a policy or law was adopted with the intent of discriminating based on some suspect ground such as race – in other words, was adopted because of, not in spite of, its likely racial effects. However, it is often difficult to marshal evidence that policymakers are engaged in intentionally discriminatory actions. Tsai’s alternative grounds do not carry the same evidentiary burden. Finally, equality judgments sometimes entail large-scale changes in the social order, including with respect to the distribution of goods. By contrast, alternative grounds such as fairness and rationality generally involve only case-by-case or incremental changes that are more acceptable to litigants and the public.
Many of Tsai’s examples are compelling. Moreover, his optimism about the prospects for “equality by other means” is almost contagious. However, there are some potential problems with practical equality as a means of seeking justice. Tsai believes that his approach “should come as second nature, because Americans have always been a practical people” (p. 38). Perhaps. However, when it comes to equality rights, Americans have also been vocal, insistent, and downright impatient. Equality movements, being large tents, can be difficult to constrain. Practical equality requires a kind of strategic patience and forbearance that may be impractical or unenforceable.
Whatever our historical norms and attitudes, it is fair to ask whether practical equality is an approach suited for the present era. Today’s activism and politics seem anything but flexible and pragmatic; indeed, they may be more polarized, strident, and reductive than ever. And while pragmatism relies on facts and empirical details, we are fighting a literal war on truth and veracity executed at the highest levels of government. These conditions make it more difficult for policymakers to acknowledge suffering or unfairness when it occurs – consider, for example, the recent situation affecting migrant children at the nation’s borders. Instead of coming to the table to fashion sensible solutions, advocates dug in and spoke past one another. Narratives and talking points, rather than facts and details, seem to be the currency of our political discourse.
Tsai’s ultimate goal of building a political culture that actually values equality presupposes a culture in which partisans can be convinced to play by fair rules, to base decisions on actual reasons rather than post-hoc rationalizations, and to support freedom of expression for everyone. Our current political institutions, campuses, and courts hardly seem up to these tasks. Partisan gerrymandering, anti-Muslim and anti-immigrant policies, a rise in hate speech and hate groups, disruption or dis-invitation of speakers on campus, and presidential proposals to jail and denaturalize those who burn the flag all suggest that we do not live in a pragmatic age.
Tsai does demonstrate that advocates and courts in the past have fashioned compromises on non-equality grounds – even when they were highly polarized. Indeed, one of the strengths of the book is the way it resorts to prominent and lesser-known examples in which courts and other actors successfully used practical equality arguments to achieve a form of justice.
However, the second-best arguments are “second-best” for a reason and these gap-fillers [*61] have some gaps of their own. For example, Tsai begins his book with an account of President Trump’s Muslim travel ban. He sees reason for optimism in the political activism the original ban produced, as well as the lower court decisions that invalidated various iterations of the policy and forced the administration to return to the drawing board. The public contention showed that Americans are still able to rally when they feel government is perpetrating an injustice. Some of the policy amendments did indeed narrow the ban, and hence relieve the suffering of some of those subject to its restrictions. Ultimately, however, it was the “rule of reason” Tsai touts that saved the travel ban. Other than to imply that presidents can and have done better, the Supreme Court scarcely acknowledged the anti-Muslim bias pouring from the president’s Twitter account and from the mouths of some of his advisors. Instead, the Court largely deferred to the administration’s post-hoc and disingenuous “national security” rationale for its policy.
As Tsai acknowledges, the rule of reason as currently applied by courts regularly involves this kind of broad deference. Unless and until that changes, the rule of reason will not provide a reliable ground for smoking out or invalidating injustices. Similarly, as Tsai also concedes, actors frequently dispute the parameters of what is “rational,” “fair,” or “cruel,” just as they disagree about what equality means. For this reason, in some cases practical equality may lead to neither consensus nor a path to equality and justice, but rather division on these other grounds.
As one would expect of a pragmatist, Tsai is realistic about his proposed second-best or alternative arguments. He acknowledges that the alternative principles and arguments have limitations. He knows that practical equality is not always the road courts and other actors will choose to follow. At the same time, he considers it imperative that advocates present them with alternatives in situations where it is too difficult or divisive to resort to equality principles. In those contexts, a partial victory could prevent calamitous results.
As Tsai observes, our history is rife with what he calls “tragic precedents” which are Supreme Court decisions that produced manifest injustices. PLESSY V.FERGUSON, which upheld and ensconced a “separate but equal” doctrine used to defend racial segregation, and KOREMATSU V. UNITED STATES, which upheld the exclusion of Asian-Americans from large portions of the nation’s West Coast during World War II, are examples of such anti-canonical decisions. Tsai argues that the justices might have avoided these infamous precedents had they relied on fairness or other non-equality arguments. Whether or not that counter-factual is accurate, Tsai is surely correct that we ought at least to try to avoid similar tragedies from occurring in the future. Even if practical equality merely provides a possible means of avoiding “tragic precedents,” we should embrace and adopt it solely for that reason.
Tsai seems to acknowledge that his proposals are likely to frustrate committed and passionate egalitarians. That intuition rings true. Some activists and policymakers might well ask whether, in the twenty-first century, it is time to demand more than half a loaf, or a slice of bread, or even just a few equality-lite crumbs. Case-by-case determinations based on fairness, rationality, and other second-best principles fail to address systemic harms. They also do not attend to the expressive harms associated with merely having discriminatory laws and policies on the books. Further, they place the burden on each individual victim of unfair treatment, cruelty, irrationality, and censorship to slug things out in courts or other venues. In addition, the remedies these alternative arguments produce may not be very stable or effective. It is certainly possible that officials will change policies when confronted with instances of irrational enforcement or cruel results. At the same time, they might simply get better at rationalizing unjust or cruel results.
The restraint Tsai counsels will strike some as unwarranted and perhaps even unwise. He argues that in terms of producing egalitarian results, in many situations a chisel will do just as well as a sledgehammer – without creating the same level of division and backlash. However, sometimes a challenger really does need a sledgehammer to address inequality. Half measures and “flanking maneuvers” (as Tsai refers to some alternative arguments) designed to redirect the conversation [*62] away from equality concerns may simply be a prescription for justice denied. Practical equality may try the patience of those who are convinced that two hundred-plus years of injustice and unequal treatment merit more than second-best solutions. Moreover, worrying about offending the sensibilities of those who oppose equality might strike some egalitarians as its own form of capitulation. That kind of forbearance may strike traditionally marginalized persons, who continue to feel oppressed, aggrieved, and de-valued as citizens, as profoundly unfair.
Tsai acknowledges that there is rhetorical power in calling a bigot a bigot, and he does not say advocates, officials, or courts should never do so. However, he generally counsels restraint in the interest of reaching “common ground” and, perhaps, a more just result than might have been reached on more judgmental bases. He wants advocates, officials, and judges to pull their punches and act more strategically in the pursuit of equality. He wants them to put down the sledgehammer, pick up the chisel, and get busy doing the hard work of equality.
To his credit, Tsai marshals substantial evidence that forbearance can produce important egalitarian results. A Supreme Court hesitant to proclaim all legal distinctions based on mental disability inherently suspect can rely instead on a rule of reason that requires officials to explain their decision to deny benefits to the mentally disabled but not to others in comparable situations. As Tsai explains, that same rationality rule ultimately helped to produce marriage equality for gay and lesbian couples. Historically, freedom of speech and freedom of association arguments have preceded court decisions that recognized substantive equality rights. Thus, these “techniques” and “tools” have provided grounds for advancement of equality, even when explicit demands for equal treatment were unavailable or unsuccessful.
As the name suggests, practical equality rests upon principles of flexibility, compromise, and patience. As noted, all of these are currently in very short supply. However, perhaps that is what makes Tsai’s approach appropriate, and even necessary, in our current era. The book is a guide for working through – and sometimes around – the challenges of achieving equality in a deeply divided society. It provides a blueprint for accomplishing equality in an age when progress on that score seems increasingly unlikely – to some, perhaps even impossible. It is chock full of hopeful and optimistic reminders that we have many tools at our disposal for achieving the ends of justice and equality.
In a world full of imperfect choices, pursuing practical equality is better than deferring hard choices regarding the distribution of benefits or appeasing opponents by simply accepting unfairness or injustice. Relying on equality approximations or next-best principles does not seem bold or audacious. However, if there is an overriding truth in Tsai’s book, it is that the work of equality has always been arduous, unglamorous, and painfully incremental.
CASES:
KOREMATSU V. UNITED STATES, 323 U.S. 314 (1944).
PLESSY V. FERGUSON, 163 U.S. 537 (1896).
© Copyright 2019 by author, Timothy Zick.
