Robert L. Tsai, “Practical Equality”

u
14:59
know so so I so I think that you know
the for the for these populations
whether you’re homeless whether you’re a
convicted person whether you’re a
migrant it really doesn’t matter to you
which of these arguments is going to
work what matters to you are this or the
tangible effects of embracing one of
these arguments right that the burden
that you are experiencing the Muslim
traveler right the burden that you’re
experiencing will somehow be lifted so
the first of the four strategies you
call fair play which is a good English
concept and lawyers might call it due
process and about that you say that it
can be valuable because it’s less
morally judgemental than an equality
based argument because I think you would
say that some equality based arguments
when you rule against somebody
they may think they’re being insulted
they may think you’re wait I’m against
same-sex marriage and I lose are you
calling me a bigot whereas your Fairplay
arguments don’t have that Freight yes I
think I think that’s right that’s one of
the sort of compared advantages of
something like a fairness argument this
is if you’re if you’re if you’re in a
heated argument with somebody over the
notion of equality they’re there a
couple reasons why right one is is that
there’s a kind of structure to the way
these kinds of conversations tend to
there’s a structure of the arguments are
kind of a pattern that these these kinds
of arguments tend to follow and when I
say about equality arguments is that
that they tend to fall along this path
right that we often get stuck over the
question of who is deserving of equality
we assume that’s there’s someone out
there who doesn’t deserve equality so I
already talked about felons for example
what about someone who is accused of
being a terrorist right what about
someone who doesn’t quite look like me
what if what about someone who doesn’t
share my values right
so we when we talk about a cual we often
get stuck on this very question and as
you say the other the other part of this
is is that when we say someone has
violated someone’s equality rights
that’s a real morally judgmental thing
that we’re saying and and in the in the
travel ban cases we’ve already talked
about a little bit I think this is one
of the things that that that judges
really get hung up on is that if we
strike the travel ban down on the reason
that it violates religious freedom
aren‘t we saying that President Trump is
a religious bigot now it might be true
that many of us think that already all
right but for the Supreme Court of the
United States to say that the president
is a bigot is also to say or at least
strongly suggest that millions of people
who voted for him might also be bigots
and I think that this is one of the
things that is that is subtly causing
people on including the Supreme Court
United States to not want to confront
this question very seriously and indeed
they end up ducking this right so what
about fairness
so I think fairness actually can change
the conversation because it’s not that
fairness questions are non-judgmental
they’re still judgmental but they’re
judgmental about different things right
they’re not as judgmental about the who
then we’re just mental about policies
about practices about institutions right
this institution is not fair that
institutions not fair
let me give you an example in the book I
tell a story and it’s a story about a
18:32
real case that is set in 1930s Jim Crow
18:36
South
18:37
and it involves a case called brown
18:39
versus Mississippi or what we might
18:42
consider the Forgotten brown case right
18:44
some civil rights lawyers know Brown
18:46
very well but most people don’t know
18:49
this case and what happened was there
18:51
was a white planter who was found dead
18:53
in his home and suspicion immediately
18:56
fell on three or four people who lived
19:01
in the area and they were all African
19:02
American and what happened during the
19:04
investigation was that the sheriff and
19:07
his deputies rounded up each of these
19:10
individuals and beat them severely
19:13
including stringing one of them up a
19:14
tree to try to get him to confess and he
19:19
did and in the end the posse did this
19:21
over the lynch mob did this more than
19:23
once right and he insisted he was
19:26
innocent and these practices continued
19:29
well eventually of course the beatings
19:32
went on so long that they in fact made
19:34
confessions and who wouldn’t write to
19:36
get the beatings to stop and they were
19:39
prosecuted and they were given the death
19:40
sentences all of them and when they
19:43
challenged these death sentences it was
19:46
in a period of time in which arguments
19:49
about equality would have had a really
19:51
hard time prevailing in the courts and
19:55
one of those reasons is because of a
19:57
concern that if we take equality
19:59
arguments too far in the criminal
20:02
justice system right that we might
20:03
change the criminal justice system too
20:06
much but this is one of the practical
20:08
obstacles to equality in the criminal
20:11
justice system and
20:13
that’s what the Mississippi Supreme
20:14
Court did in this case was to simply say
20:17
we don’t see any problem here right as
20:20
long as the procedures in court were
20:23
fine then we don’t really care how that
20:26
evidence was gone that decision was a
20:28
travesty and when that was appealed to
20:31
the United States Supreme Court I say
20:34
that the Supreme Court got it right they
20:37
sense that there was an equality problem
20:39
here that the that the methods that were
20:41
used against these poor suspects would
20:45
not have been used against anybody else
20:46
right they were not the the kinds of
20:48
things they did to white suspects for
20:49
example and they talked about what was
20:52
at stake and clearly race-based terms
20:55
they really saw that this was a case of
20:58
of unequal justice but they simply
21:00
couldn’t say that at the time all these
21:02
concerns about embracing equality too
21:04
far at that time in that system
21:07
I think prevented them from doing it so
21:09
what did they do the good news is I
21:11
think that they did exactly what I
21:13
suggest in the book is that I treat this
21:15
as an example of the Supreme Court
21:17
trying to find some way to do practical
21:20
quality they embrace the fairness
21:22
argument and they said okay well we’re
21:25
not going to worry at the moment about
21:27
trying to judge these individuals of
21:30
committing a moral wrong in a deep way
21:32
but we are going to say that this
21:34
institution was that this process was
21:37
flawed from beginning to end and that
21:38
these individuals were entitled to be
21:42
treated fairly throughout the court
21:44
system and to rely on confessions that
21:48
were gotten through beatings was
21:50
fundamentally unfair and so from my
21:52
perspective this was an example of doing
21:54
the work of equality in a slightly
21:55
different way so does it do the same
21:57
work because the Supreme Court is you
22:00
know Robert does two things it resolves
22:02
particular disputes and it announces
22:05
broad legal principles that will apply
22:07
in lots of cases and had the court ruled
22:10
on equality ground so we definitely have
22:11
the broad legal principle I don’t know
22:14
that this kind of decision on fairness
22:16
gets you there I think that it doesn’t
22:20
do exactly the same kind of work it
22:22
certainly didn’t say these sheriff’s are
22:25
morally blameworthy
22:27
in a deep way and we need to cast him
22:29
out of the community that was going to
22:30
have to be done by somebody else on the
22:33
other hand if we had insisted if
22:37
somebody insisted that they do it
22:38
overtly through the equal protection
22:40
clause let’s say they might not have
22:42
been able to get to five votes right to
22:45
do it that way and to me that’s a
22:47
serious problem because one of the
22:48
things I talk about in the book is that
22:50
we have to avoid what I call tragic
22:53
precedence because they’re there there
22:55
are there’s fighting hard and there’s
22:58
fighting in a way that leads to a
23:00
horrible result that ends up
23:02
demoralizing activists that ends up
23:06
creating kind of monuments to inequality
23:09
that can take generations to uproot and
23:11
we can think of cases like Korematsu we
23:14
can think of cases like Plessy versus
23:15
Ferguson as as really good examples of
23:18
this but one of the things that I think
23:20
we have to keep in mind as we fight for
23:22
equality is how do we fight hard but
23:25
without without kind of falling into
23:28
that trap where we’re sort of partly
23:30
responsible for creating a terrible
23:33
precedent like that do you think your
23:35
book may be particularly timely in the
23:37
current environment where the Supreme
23:39
Court has just lately
23:41
veered to the right and will not be I
23:44
would say a particularly hospitable
23:46
forum for lots of equality arguments I
23:49
think that’s a kind of way putting Adam
23:50
I actually put I might put it a little
23:52
bit darker that that I think that I mean
23:55
if you’re a progressive I think you look
23:57
at the Supreme Court and the Supreme
23:58
Court probably lost for a generation or
24:00
more right in the sense that the the
24:01
Supreme Court can’t be expected to be a
24:05
predictable Ally for a whole number of
24:08
progressive causes whether that’s the
24:12
the rights of transgender people or
24:15
expanding the right of sex equality in
24:19
other ways I think it’s going to be
24:22
really hard to expect the Supreme Court
24:24
to do that in the future so but there’s
24:26
a good news here I think the good news
24:28
is a we don’t always have to rely on the
24:30
Supreme Court we can rely on other
24:33
courts there’s a lot of really great
24:35
work that state supreme courts are doing
24:37
and this is a great opportunity to make
24:39
both very bold a koala
24:41
arguments right to those justices in
24:44
those state courts as well as all the
24:46
other arguments I talk about fairness
24:47
avoiding cruelty and so forth
24:50
and so there’s those opportunities kind
24:53
of in terms of litigation but there’s
24:54
also opportunities to make those
24:56
arguments in you know states and local
24:59
communities to try to prevent those
25:01
policies from being enacted in the first
25:03
place right there’s nothing that
25:05
prevents us from making these kinds of
25:07
arguments to other people to mayor’s to
25:10
governor’s to attorney generals and as I
25:13
like to tell my students right in some
25:15
of these places where you’re sort of the
25:17
most demoralized you know you just have
25:20
to win a couple of key offices right
25:22
when the governorship or when the office
25:26
of the Attorney General those two
25:28
positions probably have more power than
25:30
any other position to to block at least
25:33
the worst kinds of things that can
25:35
happen I think I want to skip over
25:38
lightly to additional backup strategies
25:40
you mention them in passing rationality
25:43
which is to say courts can look at laws
25:46
and practices and say this just doesn’t
25:49
make sense and that that’s a route
25:52
that’s available barring cruelty you
25:56
know as the Eighth Amendment does and is
25:58
normal moral human practice does so
26:00
those are two other backup strategies
26:01
but I’m particularly interested in free
26:03
speech my background is in free speech
26:05
and there although you say most of these
26:08
backup strategies are interlocking with
26:11
equality they’re moving in the same
26:12
direction I think in speech and you’ve
26:15
already touched on this there may be
26:16
some tension right so consider hate
26:20
speech hate speech is anathema to
26:23
equality and yet under the US
26:26
Constitution we protect it how do you
26:29
reconcile these things in which side do
26:31
you come down on yeah that’s that’s
26:33
that’s a great question because it’s a
26:34
tough question and it’s a tough question
26:36
because although in the United States
26:39
we’ve taken one answer which is we have
26:43
a very very expansive understanding of
26:44
free speech we protect an individual’s
26:48
ability espouse all kinds of hateful
26:49
things up until the point that they
26:52
cross a line right that they that there
26:54
actually exhorting some sort of
26:55
law-breaking and that’s and that’s
26:57
pretty expansionist right in terms of
26:59
protecting free speech when we look at
27:00
what other countries do they’ve looked
27:02
at what we do and think we’re nuts and
27:04
they’ve explicitly repudiated what we do
27:06
so so so it’s not as though the choice
27:09
that we’ve made as Americans is
27:13
absolutely the correct choice under all
27:15
circumstances what do I come down on
27:17
this I think that that is a really good
27:19
example where speech can be understood
27:22
to be in deep tension with quality right
27:24
because a lot of the things that lead to
27:28
deep forms of inequality rely on the
27:32
horrible sort of speech that is allowed
27:35
to to be expressed right that that
27:37
that’s how these ideas are communicated
27:39
and then I kind of find their way into
27:42
the minds and then the behavior people
27:43
so there’s no amount of denying that
27:45
that’s true at the same time we still I
27:48
think embrace we have a hopeful view in
27:52
embracing this idea of free speech which
27:54
is that even though we protect the right
27:57
of people to espouse these horrible
27:58
things we don’t think that listeners are
28:01
robots right we accept that it’s
28:04
possible we hope people will will hear
28:08
something that’s crazy and racist and
28:11
bigoted and choose to say instead you’re
28:15
racist you’re bigoted I don’t agree with
28:18
what you’re saying and and and to me
28:21
this hopefulness that goes along with
28:25
the this desire to sort of defend the
28:29
ability of the dignity of the individual
28:31
in expressing their view whatever that
28:33
view is right is doing in this broader
28:37
sense some of the work of equality but
28:40
as you say it’s not an easy question and
28:42
do you have some hesitations so these
28:44
these doctrines we’ve been talking about
28:46
were built in the 60s and 70s in a
28:49
different era in the internet internet
28:52
era and in the Trump era and in the
28:56
Charlottesville era do we need to
28:58
rethink any of this I think that
29:02
there are ways to rethink that question
29:05
in terms of perhaps what the state can
29:07
do in terms of perhaps monitoring groups
29:10
that that because of their past
29:13
practices merit being watched I think
29:16
that in Charlottesville for example
29:17
there are things that the University of
29:19
Virginia has done that the local
29:20
community has done in the wake of what
29:23
happened that are perfectly legitimate
29:25
for example if you are somebody if
29:27
you’re a group that has crossed the line
29:29
and has violated the law while you’re
29:31
expressing your free speech values it
29:34
could be that you can get an order that
29:37
prohibits you from coming back and and
29:39
and and doing that same thing once again
29:42
and that’s a strategy that has been
29:44
pursued I think quite effectively so so
29:46
in a way then we’re not really punishing
29:48
somebody for their speech we’re
29:50
punishing them for their law breaking of
29:52
their rule breaking after the fact and
29:53
we’re preventing that same rule breaking
29:55
in the future I’ve got a couple more
29:58
questions but I know you guys are gonna
29:59
have lots of questions for Robert so
30:01
whenever you feel like it you can line
30:03
up at that microphone so I want to ask
30:06
about another situation in which two
30:08
sets of values may be in tension you all
30:10
know the masterpiece cake shop case in
30:13
which a Christian Baker in Colorado
30:16
refused to make a custom cake for a
30:19
same-sex marriage saying that would
30:21
violate his religious principles what’s
30:25
the right way to think about that
30:26
tension certainly the Equality value is
30:28
easy to see that you know people walk
30:31
into a bakery and would like to get
30:32
served and don’t like being told that
30:34
they’re not welcome there because
30:35
they’re gay but there are lots of people
30:38
who think the religious liberty value on
30:40
the other side is meaningful – yeah I I
30:42
think what I would say about that is
30:43
that while that situation is often
30:46
described as one where liberty is pitted
30:49
against equality it’s actually more
30:51
complicated than that right that let’s
30:54
start with the with the couple who’s
30:56
getting married and wants to get this
30:58
cake right it’s very important to them
30:59
it’s also very important that they’re
31:01
treated equally like other customers
31:02
there’s a quality on that side but
31:05
there’s also in some people’s minds
31:08
speech there’s association they they
31:10
believe that they have the ability to go
31:12
out express themselves who they are that
31:15
that this is also part of the expression
31:17
of their identity not everybody sees it
31:20
that way now the courts also see it that
31:21
way but I think lots lots of regular
31:23
people and some academics see it that
31:25
way and on the other side what’s often
31:28
described merely as a Liberty situation
31:30
also has equality because the the
31:34
religious objector their right isn’t
31:37
just objecting on his or her behalf
31:39
he’s also objecting on behalf of a
31:42
community that disagrees and so to the
31:45
extent that an individual is right of
31:48
conscience let’s say a right of religion
31:50
is is respected and it’s possible in
31:53
entire groups religious beliefs are also
31:57
deemed kind of worthy of respect okay so
32:00
so so I think the takeaway here is that
32:03
you’ve got you’ve got Liberty and your
32:06
quality on both sides of it now none of
32:09
this tells us exactly where to draw the
32:10
line or I personally would prefer to
32:12
draw a line is where where it respects
32:17
the ability of local communities let’s
32:19
say living in Colorado to decide that
32:22
equality is a very important value for
32:25
this community right and to enact laws
32:28
like public accommodations laws and that
32:30
that is given a kind of primary emphasis
32:34
and respect and then from there we ask
32:39
ourselves is there a way to give someone
32:42
who is an objector the ability to object
32:46
but without damaging that equality value
32:49
and so there might be a limited way to
32:50
do that but if we think there isn’t then
32:52
my own view is that the Equality values
32:55
should be given the most respect so the
32:57
book wasn’t out yet so Justice Kennedy
32:59
cannot have read it but what do we do
33:02
now oh I bet he has by now but it wasn’t
33:05
out then but in a way he employed one of
33:09
your strategies but maybe not in the
33:10
direction you would have employed it
33:12
because he went to the fair play idea he
33:15
didn’t reach the Equality question he
33:17
makes a fair play point and says one of
33:19
the lower tribunals had not given the
33:22
Baker a fair shake therefore he wins
33:24
yeah that’s that’s a great example so so
33:26
and that’s and that just teaches us that
33:28
there’s
33:28
there’s there’s no magical formula here
33:30
right that that if you make one of these
33:33
other arguments or even if you make the
33:36
full throated equality argument there’s
33:38
no there’s no guarantee that anyone is
33:40
going to agree with us
33:42
all we can do is do the best we can and
33:43
use as many tools as we can possibly
33:45
come up with in order to attack equality
33:48
in all these different ways so and if
33:51
there’s one message from the book it’s
33:52
that let’s turn to some audience
33:54
questions so I have a two-pronged
34:00
question one part is do you engage
34:04
feminist theory in the book or could you
34:07
anticipate what your rebuttal would be
34:10
to the kind of obvious feminist critique
34:12
that equality political equality is the
34:14
project and if you’re fighting this
34:16
massive historical system of subjugation
34:19
if you’re trying to bat it down in other
34:22
ways it’s kind of this Hydra headed
34:24
monster and you’re always going to be
34:25
fighting it in one way or another
34:27
/ what do you think of intermediate
34:30
scrutiny under the Equal Protection
34:32
Clause and is that a good second best to
34:36
an actual Equal Rights Amendment or is
34:39
there value in pursuing that amendment
34:42
as activists are doing now all right
34:44
tough tough questions out of the gate
34:46
whew okay maybe maybe I’ll take the I’ll
34:49
take I’ll take the second one first I
34:51
I’m pro ara I think that the movement to
34:54
get the original ura enacted even even
34:59
though we’ve got this deadline that we
35:00
got to deal with right is is good that
35:04
it that it adds something to have
35:06
something specific and broader about the
35:08
importance of sex equality can be
35:11
important in any number of ways I’ve got
35:13
a piece it’s going to come out in Boston
35:14
Globe in the next week or so which which
35:16
talks a little bit about this and and
35:19
and I and I urge states that haven’t
35:21
done this to do it and even to imp have
35:24
an explicit sex equality provision in
35:27
their state constitutions – that this is
35:28
a place where activism would be very
35:31
valuable and what do you get out of it
35:33
well one thing you can get out of it is
35:35
it could protect reproductive rights
35:37
more powerfully the other thing you can
35:40
get out of it is that
35:43
the way that courts see issues raised by
35:49
a transgendered people would be taken
35:52
more seriously if we had something like
35:54
that and that’s just the tip of the
35:55
iceberg so in terms of er a I’m a huge
35:59
proponent of doing that as much as
36:01
possible now your first question is as
36:04
more of a it’s like a strategy question
36:08
right so and and it’s one that that
36:10
activists friends of equality are often
36:13
faced and that’s true today and it’s
36:15
true back when we were talking about
36:17
abolitionist trying trying to decide
36:19
what’s the best way of taking down
36:20
slavery right and helping slave
36:22
populations and and that is like if we
36:25
choose this strategy if we make these
36:27
investments over here well we won’t have
36:30
quite as many resources for these other
36:32
kinds of arguments and are we right
36:33
siphoning these necessary resources away
36:36
from these sort of the direct attack
36:38
let’s say right on the kinds of you know
36:41
inequality or misogyny or whatever it is
36:43
that you’re going after and I just think
36:46
that there’s no way to get away from
36:47
that that tension right that that though
36:49
these difficult questions of where do we
36:52
invest resources and which strategies do
36:56
we pursue first and which of the backup
36:58
strategies are always going to be with
37:00
us from my mind if you care about
37:04
equality equality the moral argument
37:06
about clothes is always going to be your
37:07
lead argument but what this book is
37:10
arguing is that we also got to think
37:13
about the back up arguments and that
37:14
there’ll be these moments where we can’t
37:17
convince somebody to change
37:20
philosophically right and actually
37:22
there’s some science behind this that if
37:23
if the goal is to change people’s minds
37:26
in this sort of fundamental
37:27
philosophical way that there are lots of
37:30
reasons why that project will never
37:32
happen or it will take a long time this
37:34
is where I am is let’s just say it’s
37:36
gonna take a long time right and so we
37:38
have to see that arguments about
37:40
equality in this moral deep moral sense
37:42
our long term conversations so same sex
37:45
equality same sex marriage was an
37:47
example of this but luckily we got there
37:51
with that one right but along the way we
37:53
could do other kinds of things
37:55
to reduce some of the the harms that
37:57
certain populations face and if we can
37:59
do that then we ought to be doing both
38:01
things simultaneously thank you thank
38:03
you
38:05
so I I don’t be shy I have questions but
38:11
yours and yours will be better maybe so
38:16
doc so a couple that I have a two-part
38:19
question
38:20
lots of to prime questions tonight so
38:23
some of argue that the founding farmers
38:25
and founding founders did not really
38:29
trust all the citizens so our democracy
38:33
is not a pure democracy its
38:34
representatives Republic so we have some
38:36
representative they have regular
38:37
elections kind of like a stopgap if the
38:40
citizen acting a little bit too crazy
38:41
alright so if that is the case then how
38:47
do you then reconcile circumstances
38:50
where so for example we got past slavery
38:54
and slaves were freed but then after
38:57
enslavement stays and instituted laws
39:00
that if you jaywalk them we’re gonna
39:02
create this fine that you never can pay
39:04
back so you were indentured servant for
39:06
the rest of your life so how do you then
39:08
reconcile that maybe we have equality
39:11
and we trust the American people but at
39:14
the same time the founders didn’t fully
39:18
trust us my second prong question is
39:21
witness unconscious bias play into this
39:24
role of equality you know sometimes I I
39:27
was heading from the gym today but I
39:29
decided me get out my gym clothes and
39:31
clothe my little jacket because I was
39:32
gonna ask you a question and I wanted to
39:34
look credible look well so thank you
39:35
thank you alright so but sometimes
39:37
unconscious biases if I’m six feet 225
39:40
pounds if I’m walking up on you you know
39:42
you might have a unconscious bias so how
39:46
do we reconcile unconscious biases with
39:49
equality yeah those are both great
39:51
questions again maybe I’ll take the last
39:53
one first I do think there’s a deep
39:55
connection between unconscious bias and
39:58
at least discrimination right that that
40:01
the attitudes that people have that they
40:03
don’t always fully understand that they
40:05
have they don’t maybe interrogate can
40:07
lead them to behave in ways
40:09
since you’re treating certain kinds of
40:10
people differently right there is some
40:13
little bit of recognition of this even
40:15
though there’s resistance on a lot of a
40:16
lot of judges to use the term
40:18
unconscious bias there’s a lot even the
40:21
Supreme Billy 9 states has talked about
40:22
stereotypes right sex based stereotypes
40:26
gender-based stereotypes racial
40:29
stereotypes and that that they have
40:31
recognized that there’s a connection
40:32
between kind of tolerating stereotypes
40:35
and the kind of bias that can happen and
40:37
in the book I talk about a few of these
40:40
examples and you know I think that this
40:46
is an area where you got to have more
40:48
than one strategy right that just making
40:50
us like a straight-ahead moral argument
40:53
about equality but who deserves a
40:54
quality isn’t gonna always get us to
40:58
kind of dealing with that problem one of
40:59
the things that that I think can is to
41:02
demand that we interrogate the factual
41:06
basis for certain kinds of claims like
41:08
that’s that someone who is a member of a
41:12
group poses a threat so the travel ban
41:15
we already sort of mentioned right the
41:17
deeper claim there is is that if you are
41:20
Muslim if you come from a Muslim country
41:21
you are in a group that is inherently
41:25
threatening this is the same kind of
41:27
argument that was made during the during
41:30
world war two as it relates to the
41:32
internment of japanese-americans that
41:33
because these Japanese people don’t look
41:35
like us they have these strange you know
41:38
cultural practices and wow they even
41:42
send their kids to foreign language
41:43
schools right that they’re somehow
41:45
suspicious right they’re their dessert
41:47
they’re deserving of differential
41:49
treatment because they’re scary so this
41:52
is a kind of an example of I think what
41:53
you’re what you’re talking about and one
41:55
of the solutions here one of the one of
41:57
the things that can work maybe even
41:58
better sometimes than direct arguments
42:00
the quality is demanding more about the
42:02
facts right show us more about what it
42:05
is that somebody has done or some group
42:07
has done that really lines up with a a
42:12
realistic projection of of a
42:14
forward-looking threat and if you can’t
42:16
do that then you’re probably relying on
42:18
stereotype or unconscious bias as used
42:20
as
42:21
say now the first part of you know your
42:24
question is a harder philosophical
42:26
question to answer I think you’re right
42:29
that our Constitution was founded
42:32
through a kind of mixture kind of a
42:34
hodgepodge of ideas right there’s kind
42:36
of a deep commitment at the beginning to
42:39
what you called republican values right
42:41
the notion of that what we need to do is
42:43
kind of inculcate civic virtue among
42:46
people but also as you suggested a real
42:48
fear and skepticism of democracy they
42:52
thought that too much power and the
42:54
right in the hands of everyday people
42:56
would lead to the downfall of the United
43:00
States just like it has in every other
43:01
society right that tried democracy so
43:03
you’re absolutely right that they were
43:04
they designed these institutions in a
43:06
way that expressed that kind of a fear I
43:09
think we’re in a very different place in
43:10
lots of ways
43:12
we’re in a place today where we embrace
43:15
more broadly notions of democracy
43:17
one-person one-vote even as we’re
43:20
hanging on to some of these relics like
43:22
the electoral college right that reflect
43:26
some of these things that you that you
43:28
have described now I don’t have a real
43:30
answer here I think that we are just
43:31
sort of trying to do our best embracing
43:34
this sort of newer belief in democracy
43:38
at the same time we’re sort of kind of
43:40
you try to figure what to do with these
43:42
institutions that are hanging around so
43:44
I thank you for that
43:48
my question is simply one of
43:51
clarification I didn’t really um I
43:54
didn’t really understand the rationale
43:56
in your point that in the case of the
44:00
Jim Crow South 1930s Supreme Court
44:05
decision where those that were concerned
44:10
about equality under the law for the
44:13
accused because they had had their their
44:19
confessions beaten out of them that the
44:22
better strategy was to was to go to
44:25
fairness it seems like both fairness and
44:28
equality under the law would sort of
44:32
rely on the same idea that
44:34
african-americans are should be treated
44:37
fairly under the law and they should and
44:39
they should be treated equally under the
44:41
law I don’t don’t see why the one was a
44:44
better strategy than the other you
44:46
mentioned that the Equality was that the
44:48
justices were a little more sensitive to
44:50
the whole the strength the importance
44:52
overriding importance of qualities that
44:55
is at the yeah so so so I think I think
44:57
I I’m glad you asked this question so
44:58
that I can kind of kind of push a little
45:00
deeper and there’s more in the book
45:02
about this but the I think the concern
45:07
that the justices had and lots of people
45:09
have and even today a lot of judges have
45:12
about extending the notion of equality
45:14
in certain contexts like the criminal
45:17
justice system is that they worry that
45:20
it’s going to change for example or
45:21
alter someone’s institutional
45:24
prerogative one example would be in the
45:27
case that we’re talking about the
45:29
prerogative of investigators to use
45:32
whatever techniques right that they can
45:35
that are presumably lawful right to
45:37
investigate the prerogative of the
45:41
prosecutor to make discretionary
45:43
decisions about who to charge and what
45:46
to charge if we start to say that
45:48
equality is an idea that can kind of
45:52
come into this space into these
45:54
institutions and constrain what
45:56
investigators do and what prosecutors do
45:59
I think that this is where the judges
46:03
have historically been very very
46:05
sensitive about doing that for this very
46:08
reason now how is that different from
46:09
from fairness I think you’re totally
46:11
right
46:11
that from from the perspective of many
46:13
of us they sound a lot the same and
46:16
certainly from the perspective of the
46:18
defendants wouldn’t care right whether
46:21
you take a fairness argument a quality
46:23
argument you know the death sentence is
46:24
lifted so and that’s that’s that’s the
46:28
perspective dying that I encourage from
46:30
a sort of pragmatic sort of point of
46:32
view but I think we can’t hide the fact
46:37
that the way that we talk about equality
46:39
raises the serious and deep concerns
46:43
about changing the prosecutor of the
46:45
Skeeter’s discretion or the role of
46:46
investigators in a way that judges would
46:49
never want to do if possible there was
46:51
one earlier case where the idea of
46:54
equality was extended to the criminal
46:56
justice system system in the late 19th
46:59
century and that was in a case where
47:01
West Virginia had explicitly said by
47:04
statute that black men could not serve
47:07
on juries and they did say AHA right
47:11
equality comes in into this into this
47:13
situation too to say that the state of
47:17
Virginia can’t do this but the reason
47:19
why they say that in that case is
47:21
because they say something about jury
47:24
service has a very special sort of
47:27
social good right it’s a mark of
47:30
citizenship it’s something that we are
47:33
ought to be entitled to participate in
47:35
if we are truly to be respected in a
47:37
society and you see how that’s really
47:39
different right that’s the reason why
47:41
the court ends up saying equality is
47:44
important there and they also don’t
47:45
worry about interfering with anybody’s
47:47
prerogative so but I think it’s very
47:49
different than the 1930s case
47:50
unfortunately other questions let me I’m
47:55
sure you have them but let me ask one in
47:57
the meantime so I’ve been trying to
48:00
puzzle out how equality fits in with
48:03
affirmative action not that long ago Ivy
48:06
League universities had quotas about how
48:09
many Jews they let in that presents an
48:12
equality problem I think it does yes
48:14
today we’re hearing from some Asian
48:17
American students in lawsuits against
48:19
Harvard and University of North Carolina
48:20
that something similar is going on with
48:24
them have you do you have a take on what
48:26
the right way to think about that is
48:27
yeah it’s this is another area where
48:31
Americans are divided but if you ask if
48:34
you ask these institutions whether their
48:36
colleges or their high schools that have
48:40
the ability to control this sort of
48:42
demographics of their of their student
48:44
body they they talk about the issues as
48:47
one of educational experience of giving
48:52
kind of underrepresented groups
48:54
opportunities that they might otherwise
48:56
be prevented from and they’re trying to
48:59
balance like a whole host of of
49:01
competing kind of values if you will and
49:04
this is where the idea of diversity in
49:05
that context has been treated as a
49:08
serious value that you know who we allow
49:13
to go to school especially in these
49:15
state schools is important for the rest
49:18
of their lives right that that it sets
49:20
them up for their futures and their
49:22
ability to pursue whatever sort of
49:23
professional future that they want to
49:25
want to have and at the same time as you
49:29
say we’ve got to worry about you know
49:32
them not taking it too far that they
49:35
might be possibly discriminating right
49:38
in a way using these proxies and so I
49:43
think these cases will turn out only
49:46
after we sort of look very carefully at
49:48
the facts of the case right because you
49:50
can’t really tell what’s going on based
49:52
on I think the coverage yeah my question
49:59
is about how do you reconcile the super
50:03
PACs donating uh endless money to
50:05
campaigns and how do you think that’s
50:06
gonna play into our democracy when all
50:08
these politicians are funded by big
50:11
corporations and these big corporations
50:12
have a lot of power and many would argue
50:14
more power than the average citizen how
50:16
do you address that in your book if you
50:18
do yeah I don’t directly address it but
50:20
I have some thoughts about that and and
50:22
and I and you know I think I think my
50:24
thoughts are that I think you’re right I
50:27
think that you know the problem with the
50:31
Supreme Court’s jurisprudence in terms
50:33
of corporate speech and campaign speech
50:36
well first of all it’s a mess but but
50:38
but the most recent cases that defend in
50:41
this sort of vigorous way corporations
50:43
sort of outsized political influences is
50:47
a travesty and and the problem isn’t
50:49
that they rely on speech it’s that
50:51
they’re there the court is hypocritical
50:53
about it right they they defend
50:55
vigorously corporate speech but but they
50:58
they won’t look as vigorously at the
51:01
kinds of conditions that interfere with
51:03
you know the rest of our ability to sort
51:06
of have the same or equivalent impact on
51:08
politics and that’s to me that really
51:10
the problem so I don’t have a problem
51:11
with the
51:12
court seeing that speech is involved in
51:15
political advocacy I think that basic
51:18
idea has been useful to a lot of
51:21
different rupes in society one of the
51:23
one of the groups that that really
51:25
needed it at a certain point in time was
51:27
the n-double-a-cp and I do talk about
51:29
that that there are some very important
51:31
cases and one of the stories I I talk
51:33
about is one where the Supreme Court has
51:36
has trouble deciding whether a state’s
51:39
restriction should be treated one as a
51:40
violation of equality and they can’t get
51:43
five votes that can only come up with
51:44
about three and a half I think right
51:46
there’s one justice who’s waffling on as
51:49
well tell you the story now the story is
51:50
is that after the Supreme Court hands
51:53
down Brown versus Board of Education was
51:55
we know there’s massive resistance and
51:56
in some states including Virginia what
52:00
what they do is they pass sort of
52:02
creative laws that prevent lawyers from
52:04
doing public interest work and so what
52:06
Virginia did with the pass a law to say
52:08
that no lawyer in Virginia could solicit
52:12
a client and can handle a case unless
52:16
the organization itself had a financial
52:19
interest in the outcome of the case and
52:21
of course that would put all public
52:23
interest litigation at business because
52:26
these people are volunteering their
52:27
their services for someone else right so
52:30
a number of the justices at least three
52:33
and half I thought this was a problem of
52:35
the quality that what’s going on is that
52:37
that that Virginia was trying to
52:39
frustrate Brown versus Board of
52:41
Education we can just extend the idea of
52:44
equality just a little bit and say
52:45
you’re sort of trying to do this and run
52:47
around equality well the other justices
52:49
would not have it they said we they’re
52:52
not mentioning race in the statute and
52:55
here’s a practical consideration we’ve
52:58
long allowed Virginia as a state to
53:00
regulate the practice of law and so if
53:03
we start sticking equality into this
53:05
domain then we’re going to start
53:07
creating all kinds of new constitutional
53:09
rules that we don’t want to have there
53:11
okay so what happens in this in this
53:14
great story that tell is that the
53:16
Supreme Court ends up finding an
53:17
argument that nobody argued nobody
53:20
briefed free speech and they said that
53:23
the n-double-a-cp s
53:25
right to free speech the form of
53:28
political advocacy through through
53:29
litigation was violated so to me this is
53:34
this is great and it’s an example where
53:35
speech and equality lines lines up I
53:38
just think that the court has to be
53:39
consistent about thinking along those
53:41
lines I think we’ve got time for one
53:44
more question hey professor side how are
53:53
you great to see you in response to the
53:56
new criminal justice reform act which
53:59
long lasting implications do you see in
54:02
regards to the new changes and also in
54:05
steps towards achieving equality and
54:08
how’s that reconciled with the current
54:11
administration’s view on criminal
54:13
justice and the different direction it
54:15
took compared to the last administration
54:17
yeah there’s there’s a lot of
54:18
interesting components to the to the
54:21
criminal justice reform bill I think
54:24
what I’d rather sort of say though is
54:26
that that’s actually a really good
54:27
example of certain kinds of elected
54:30
officials deciding that equality was
54:33
something that they could that they
54:34
should care about that that we ought to
54:35
care about and then finding ways to
54:39
reach a consensus
54:42
some people say compromise but I don’t
54:44
like compromise because it sounds like
54:45
if you’re compromise that somehow you’re
54:47
what you’re what you’re willing to take
54:48
us half a loaf and this book is
54:50
decidedly against the idea that if you
54:53
believe in equality should take half a
54:54
loaf is that we should be more clever
54:56
and find ways not to take half a loaf
54:58
right and yet to find different ways to
55:01
ameliorate the injuries and so I think
55:03
that the from what I’ve seen from the
55:04
criminal justice bill there were people
55:07
who cared about racial equality I’ll
55:09
just mention cory booker but he’s not
55:11
the only one there are a lot of other
55:12
people who worked on this on this
55:14
legislation and through a variety of
55:16
different kinds of I think appeals to
55:18
these different people including some
55:20
key Republicans and I guess even Jared
55:22
Kushner am i right about this yeah so
55:24
right I mean he’s the easy one he
55:26
convinces his father-in-law to sign in
55:28
to take credit for it and you know god
55:31
bless him for that right so so whatever
55:33
arguments and variety of arguments were
55:35
being made
55:36
and I heard some you know it had an
55:39
impact and to me said that the whole
55:40
process is a good example of this right
55:43
but in terms of the actual prediction
55:46
about what will have the most most
55:48
lasting impact I’m not sure if you have
55:50
an ideas about that not right now
55:52
[Music]
55:53
so this was such a fascinating
55:56
discussion full of insights please
55:58
express your admiration for Robert by
56:01
clapping by buying the book thanks so
56:05
much for coming out and thank you Adam
56:07
[Applause]
56:15
you