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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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