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88 Geo. Wash. L. Rev. Arguendo 1 (2020)

handle is hein.journals/gwargu88 and id is 1 raw text is: Equality Is a Brokered Idea Robert L. Tsai* ABSTRACT This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. Professor Robert Tsai characterizes Chief Justice John Roberts's decision to side with the liberals as a collective effort to pursue the ends of equality by other means by subjecting the government's action to the rule ofreason. Although the issue for 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, five members of the Court found the justification the administration gave to be a pretext. In this instance, official lies had a major consequence: Republican officials were not permitted to carry out their apparent scheme to engage in partisan entrenchment by depressing census responses from Hispanic citizens and undocumented migrants. Professor Tsai defends this creative effort to manipulate the political value of time and shows how the Court's rationale operates as an effective substitute for the principle of equality under difficult circumstances. Unequal policies flourish in an environment where mendacity by public officials is tolerated. It follows that by ensuring there are consequences for policies backed by lies, judges can make it harder to target political minorities with impunity. INTRODUCTION We have long been warned not to expect too much from people when it comes to defending the principle of equality. Take the U.S. Supreme Court. For every Strauder v. West Virginia,' Brown v. Board of Education,2 or Obergefell v. Hodges3 that extended equal respect to those previously denied * Clifford Scott Green Visiting Professor of Constitutional Law, Temple University, Beasley School of Law, Fall 2019; Professor of Law, American University, Washington College of Law. Thanks to Nelson Tebbe, Hermine Duplany, and Sara Douki for comments on earlier drafts. I am also grateful for the editorial support provided by Taylor Dowd, Boseul (Jenny) Jeong and the staff of the George Washington Law Review. 1 100 U.S. 303, 308 (1880) (invalidating state law that forbid black males from serving on juries because law is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to . . . race prejudice). 2 347 U.S. 483, 495 (1954) (holding that state's segregation of schoolchildren according to race was inherently unequal). 3 135 S. Ct. 2584, 2608 (2015) (concluding that laws forbidding same-sex marriage denied equal dignity). March 2020 Vol. 88 1

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