George Washington Law Review Arguendo
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.
Tsai, Robert, "Equality is a Brokered Idea" (2020). Articles in Law Reviews & Other Academic Journals. 1336.