Factually! with Adam Conover - Practical Equality with Robert Tsai

Episode Date: May 20, 2020

All of us care about equality. (At least, most of us do.) But how do we achieve equality, when the nation is so divided? And how can advocates for equality best make their case in the courts? American University law professor Robert L. Tsai joins Adam to discuss his book “Practical Equality” and more. Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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The courts have incredible power in our political system. Heck, they have their own entire branch of government. And when they make big decisions about, say, school integration, abortion or marriage equality, there's always a chunk of the American population that's going to be, well, pissed off about it, right? That's going to fight back. That's going to say, hey, fuck you, Supreme Court. I disagree with you. And now I'm mad. And now, look, in many of those cases, those people are wrong. But here's the problem. It's not like the Supreme Court's decisions are backed up by an army of robed warriors and enforcing their constitutional analysis city by city, block by block. Courts rely

on our societal belief in their authority. They actually can't just weigh the evidence and render a decision as much as we think that's what they do. Chief Justice John Roberts is not only thinking about the Constitution when he writes an opinion, he has to think about how it's going to play into the vibe of the American public, how people are going to take the decision. He has to think about how the decision will maintain or reduce the court's priestly aura because it is that very insubstantial aura that gives it what power it has. So that means that despite the lip service to dispassionate adjudication, courts are actually very political. They have to think about and respond to that portion of the population that's going to be pissed off by their decisions.

And that has massive ramifications on the fight for equality in this country. Because of the forces throughout American history that have fought against equality, racial equality, gender equality, equality of sexual orientation and others, it's often been left to the courts to right wrongs such as segregation or marriage discrimination. And as our guest today, the constitutional scholar Robert Tsai argues, the politics of the court, the fact that the court is an inherently political organization, as much as we may not think it is. That fact means that activists need to be thoughtful about how they argue their cases. He examines how the fight for equality through the courts has worked through American history.

And it turns out that seeking equality through arguments about equality, going up and saying, we need to make this change because it is unequal and we need equality. Well, it turns out that that's not always the most effective route to go, no matter how right it is. Why is that? Well, one issue is that arguing directly for equality means that the court has to decide that a group arguing against equality are more or less bigots, right? They say, OK, these people are being discriminatory, racist, sexist bigots. And if that's a huge part of the population, like, say, white Americans were in the Jim Crow South, well, that can make the court less likely to decide in favor of equality because they're worried about offending those people and reducing the legitimacy of the

court in their eyes. Or, say, if a newly elected president makes a bigoted decision supported by his bigoted supporters, the court might be hesitant to make a decision casting stern moral judgment on all of them because that is a recipe for the court losing its mystic authority. Now, I'm not saying these are proper considerations for the court. Far from it. But this is the reality of how the Supreme Court thinks when it's making a decision and the court is who you need to

convince. So Tsai argues that along the long road to greater equality for Americans, it makes sense for activists to shift the terms of the debate. Rather than focusing just on equality, which is going to require making a big moral judgment against a huge part of the population, you might, for instance, focus on a different issue such as fairness. Fairness is a lot like equality, but it's a little bit different. The framing of fairness takes the focus off who is and who isn't a bigot and puts the focus instead on the shape of our institutions. You can build consensus and maybe notch a court win by, say, arguing a bureaucracy or procedure is not fair. Rather than that, a big chunk of the American population and one political party are morally in the wrong. And in difficult political times, like, for instance,

like right now, a fairness argument might help you advance equality. And that doesn't mean that it's more moral or more right or even the actual basis for you to be trying to make this change. It just might be a little bit more strategic and let you make that change a little bit more smoothly. Right. Because at the end of the day, hey, as long as the change is made, that's what we care about. Tsai calls this kind of activism practical equality, and he wrote a book about it by the same name. I've got so much more to ask him about it. So with that, please welcome Robert Tsai, professor of law at American University's Washington College of Law. Hey, Robert, thank you so much for being on the show.

It's a pleasure to be with you, Adam. So you've written a book about equality and how we achieve it. you, Adam. So you've written a book about equality and how we achieve it. Equality is something that I think all Americans are interested in, but the road to achieving it is rockier than we might often want it to be. Tell me about your view about it. How does your view differ from the average American conception on this issue? You know, my view is very much informed by studying history, studying how we as Americans have actually struggled mightily with trying to enforce this idea of equality. You know, when you talk to people on the street,

everyone certainly agrees about the importance of equality, but it turns out that in reality, we really struggle in getting that work done. And in my book, I basically point to a number of factors for why that's the case. It's certainly true that we have very different views about what equality is all about. But even more than that, I think that there are some practical consequences. In other words, that many of us are unwilling to live with the number of the consequences that would flow from having to enforce equality. And so, you know, I can give you a few examples of this. But, you know, one example comes from the fight over same-sex education at the Virginia Military Institute.

That's probably the best example. And in that institute, they had for years taught generations of men only what it means to be a citizen and a soldier. And they thought that women simply couldn't kind of endure the special form of education that they practiced. And they thought that if a single woman was allowed into the institution, it would absolutely destroy their traditions. It would absolutely force them to change the institution. And this is an example of what I'm talking about in the book, that they simply weren't willing to live with any of the consequences of having to sort of abide by the demands of equality. And we can go from situation to situation. That's just one of the more dramatic ones. So walk me through that a little bit more, because to me, it sounds like

the consequences, I don't know this particular story so just based on what you told me to me it sounds like those consequences are are a fantasy that like oh if we start teaching a woman a society will crumble down around our heads it sounds very similar to well if you let a man and a man get married people are gonna go marry dragons and broomsticks or whatever like it's that sort of catastrophic thinking which you, you know, my experience in reality has been that that does not happen. And that so I hear you describe those people and I'm like, OK, those people are wrong. So and I can understand why that's difficult in order to convince them of their wrongness. But I'm wondering if you if you can unpack a little bit what you mean about about the consequences.

Yeah, absolutely. You're absolutely right. You know, the example you gave as well, let's imagine all these horrible things that might flow from that. And sometimes the problem is what you've described, which is a kind of overactive imagination, right? That if we just do this one thing, then all these other things will flow from that. So we can't do this one thing as a way of stopping those other terrible things. So sometimes it's an overactive imagination, but sometimes it's a failure of imagination. So in the VMI case that I started with, they can't imagine the possibility even that there would be enough women, young women growing up in that state who even want to go through this process, right, to dream of being a soldier in this state and kind of leading our

country in this way. Because one of the things they point to is, look, there aren't very many women who sort of cried out about this and complained. So why should we change our institutions even just a little bit to meet a non-existent demand. So that's a failure of imagination that sometimes grips people's minds as well. And so these are ways you're describing that Americans have pushed back against equality. Is that what you mean? Or have been unwilling to cross the threshold of equality? And I don't think that's something that I'm familiar with as an American. Like I've experienced that for the civil rights movements that I've been alive for, that the gay rights movement is the most profound one I think to happen in my time. And we've also

had an awakening of other movements in the last few years. There's been Black Lives Matter and so many others that have fought for equality in individual ways. And of course we've experienced pushback along with all of those. Um, but, uh, we also have this narrative of, you know, uh, I'm going to butcher the long arc of history, right? The long arc of history bends towards justice, right? I remember, I can remember the, uh, president Obama saying that a couple of times with a, with a, a far off look in his eye of, of, you know, hope and optimism. Um, do you, do you share that general view of, uh, how we move towards equality that like, Hey, you know, there's stumbles across the way you always get a little pushback, but Hey, we always move in the right direction and that's the right side of history.

hey, we always move in the right direction, and that's the right side of history? I don't. That's a very famous quote. It pre-existed Martin Luther King's use of it, but he's the one who used it in his letters and speeches and, of course, kind of broadcast it more widely, and that's kind of how Obama picks it up. I think it's too Whiggish a view of history that we're always moving in this kind of enlightened direction. Instead, my take on our actual history is, is while there has been some progress, there are always some setbacks. And at times there can be even a major blowback. For instance, everyone now knows that same-sex couples are able to access marriage, but most people forget that the very first court to actually hand down a decision requiring equality in that context was the Supreme Court

of Hawaii. What happens next is that the voters of Hawaii disagree with the decision. And then they, through kind of a referendum process, end up overturning that state Supreme Court decision. And then the backlash doesn't stop there. In the next few years, what we have is we have a bunch of jurisdictions kind of preemptively passing these state DOMAs, the Defense of Marriage Act, right, that kind of sweep across the country. Even in those places where there isn't a significant push for recognition of same-sex marriage, they're kind of doing this preemptively. And then this eventually kind of convinces President Clinton to pass the Federal Defense of Marriage Act. And this is a huge setback once we have a federal law that basically defines marriage as strictly between a man and a woman. There are a whole bunch of ramifications for this, right, for taxes and all these other kinds of things. And so that's my example of how sometimes a step forward at the wrong time, perhaps, or maybe a fragile time can sometimes

lead to a major setback that requires much more mobilization to overcome. I see. And so you're sort of making the point that, hey, that setback, it's not necessarily just a speed bump. It can it can actually be a real setback that that hurts people and can last for a long time. I think about we've talked on this show before about and this is, I think, a really, really macro version of maybe what you're talking about. Tell me if it fits in with your framework. But we've talked about the reconstruction years when black Americans in the first few years after the Civil War, you know, were given a fought for and received like a huge number of rights. And, you know, in the South, we're serving as Congress people, right right uh voting rights really ride spread get a lot of education and the backlash was was so sharp um the backlash to jim crow was so sharp and sudden and as opposed

to the ones that you're talking about with in the gay rights movement where okay hey we had 10 years where we had to keep fighting and then we won you know uh that lasted a century in the case of the post reconstruction years that, that we abolished slavery, uh, then bestowed all these rights and then they were taken away for literally a century. Um, and so for those folks in the middle of that century, it might not have felt like the long arc of history, uh, was bending in the, in the right direction. It took an extremely long time. And yeah, that's something that we should think about and honor when we're talking about these struggles and not just sweep under the rug and say,

oh no, hey, the long arc of history will take care of us. Right. I think that's a pretty good historical example to think about because, you know, a lot of people don't know or don't remember that the first moment of a kind of, you know, biracial coalition of people governing themselves happens for that first time during the, you know, at the end of the Civil War, as you described. And you're right, you know, and Eric Foner is really great about this and others who've worked in his kind of shadow. But, you know, they're African-Americans who hold offices and making decisions in a way that we still haven't seen to this day because of the

backlash that happens. Now, one of the things to keep in mind is that part of the backlash that occurs then are not only explicit things limiting in very explicit ways notions of equality, but also some kind of nefarious ways of restricting equality, like curfew laws, restrictions of pro-equality speech, pamphlets. They expand the disenfranchisement of felons, which on its face isn't about black people or white people or anybody else, but everybody knows that that's what that's about. And so then they use the criminal law, of course, to funnel a lot of African Americans into the criminal justice system. And then they use these race neutral laws to take their votes away. So I draw on a little bit of this part of American history, just to illustrate that there can be a variety of ways in which people's equal equality rights can be negatively impacted, right?

They can take away your speech rights and make it harder for you to advocate for equality. They can treat you in cruel ways through the criminal justice system in ways that they don't treat other people. Right. And they could, they could restrict your voting rights, which we've done for a long time in this country, not just explicitly on the basis of race, but through these other mechanisms like, you know, testing or requiring driver's licenses or any number of things that don't look on their face to be about race, but very much are driven by kind of a secret plan to hurt some people over others.

And so what I say in the book is that if that's right, that there are a whole lot of different strategies for hurting people and treating them unequally, then we need to have a whole bunch of different strategy, a wide range of ways of talking about how to reduce those harms. And that's what I do in the book, is I actually suggest that there is a lot of overlap between the traditional way we think of equality and the way we think about sort of fairness, talk about fairness. We have a long tradition in this country

about avoiding excessive cruelty, cruel punishments. And when we do that, we're also preserving people's dignity and in some ways saying that the cruel treatment of people also affects their equal status. So how do we, when there is that big backlash, when we know that that backlash can happen, how does that, in your view, change the way that we should fight for equality or so that we might fight for it more strategically? Right, right. Well, if the backlash has happened, let's say we've misjudged. Sometimes, you know, sometimes we misjudge things and it may be that, you know, thinking about the situation about same-sex marriage, it's possible that in the early 90s, we weren't quite ready for

it in the way that we are now culturally, right, and politically. And so let's say you misjudge things, and then there's a huge backlash that comes down. Well, then you got to chip away at it with as many different tools as you can. And sometimes you have to make arguments about fairness. So what activists did in that period after the backlash was to try to chip away in certain domains, like to try to improve the ability of same-sex parents using arguments about fairness and other rights, rights to family control, and not explicitly about marriage, right, to try to chip away that. And they had some success in some progressive jurisdictions and so forth.

And the hope is that at some point you get enough positive wins that you can make broader arguments when the time is right. So a lot of the alternative strategy I talk about are about that, that if you find yourself hunkered down and you are in a tough spot, then sometimes you can make fairness arguments as alternative arguments and kind of build a movement and build a body of arguments that will set you up to make broader arguments about equality. this book is the person who's working at the civil rights organization and is like, how do we advance this cause over the next 40 years? And like, what are the different steps that we need to take? You're talking about, hey, building your argument about fairness and about this and that and doing it piece by piece in that way. Yeah, I think part of the audience certainly is, you know, the activists and some of the lawyers. But also I think that there are people who,

let's say on the progressive side of things are, hitting the streets, they're active on social media. They see things in terms of equality first and only in these other ways as second or third arguments. The message is also for them to think hard about how they're sort of talking about the problem, right? And sometimes it's important to talk about problems in this frame of equality because it has this sort of very powerful moral character, right?

When we talk in these terms about equality, we're really saying that we're denying somebody equal status. Yeah, their personhood. Absolutely, and personhood. And we're also, I think, implying that there's something very, very important at stake. Usually some set of social goods that somebody has not been able to access, like marriage, right, or education or something like this. But not every situation is like that either. marriage, right, or education or something like this. But not every situation is like that either. So we have a lot of situations where people are being treated differently in contexts where we say traditionally allow states to treat people differently. My biggest example that runs through

the book are people who are either charged with crimes or they've been convicted of crimes and they're already in prison. And people there are treated differently all the time. And we accept that they're treated differently from people who are on the outside. Right. But does that mean that they should be? I don't know that I fully accept that. But there are certainly cases where, you know, people there are rights denied to folks in prison that that I believe should not be. there are rights denied to folks in prison that that I believe should not be. And I would say in general, I feel that folks I would feel that our criminal justice system is too punitive in that way. You know, when I don't think it should cost someone in prison twenty dollars to make a phone

call to their family. All right. But and I think that most people, if you explain that to them, I think a large number of Americans would agree with me. But I don't want to derail you. Please continue. Not at all. Well, I think this is a great example, right? We do impose a lot of conditions and fees and things on people who are incarcerated. That if you have a very broad notion of equality, so let's say you're on the more progressive side of things, the more progressive side of things, you're going to see that that treats poor people, people who are people of color, who are behind bars in ways that are different and perhaps not justified, right? And if you see the world that way, then we should be demanding that the state answer some tough questions. Like, why do you have to make them pay for the phone call? Why do you

have to make them pay for their own bedsheets? I think these are legitimate ways to think about equality, but that's not necessarily always the best form of the argument to get people to take it seriously. So if you're talking to the prison authorities, or you're talking to the warden, or you're talking to the state legislators or the governor who has their hands on the levers of power, those arguments from the equality standpoint aren't always going to be the most powerful. If they don't accept your premises that this is the best way to think about those conditions, then some other argument might be better. So it might be that at times a fairness argument feels a little softer because it's not as transformative, it's not as threatening, right? It may be that all you're

asking is that they have some fair shot at something, or they've got the ability to kind of ask questions or be heard before something happens to them. That sounds a little bit milder, but might be able to preserve their dignity or their rights in some less threatening way. So on the one hand, I want to see if I can, you know, chew up and spit back out what I think your argument is, which is that, you know, we should be strategic when we're trying to achieve these goals. And it sounds like you would urge the criminal justice reformer who is trying to improve conditions in the prison to be strategic about it and think about the person who they're talking to and think about what can be achieved practically. And that's the title of your book is Practical Equality.

Is that right? Absolutely. Yeah. So the flip side of that, though, that's a positive way to frame the argument. A negative way to frame it is that and I'm sure you've encountered this. So I want to hear your your answer to it. I don't forgive me if if if you've heard this before. But a negative way to frame it is that, hey, you should set your sights lower. You shouldn't set your sights on the principle that you believe in and the thing that people actually need.

You should ask for something smaller because that's all you're going to get. That's all that the person who holds the power is going to give you in the case of the warden or for fear of upsetting the folks out there who are going to be irrationally offended by your goal, right? Who don't understand it. And it occurs to me that the counter argument would be that that gives those people an enormous amount of power, right? That then you're, before you even begin, you're subordinating yourself to the opinion of, let's say in some case, bigots, right? If we're talking about say racial equality or an issue like that, you're literally saying, oh, well, the bigots won't like that. So let's be careful, right?

And, you know, that's a difficult thing to ask. I find myself torn between that when I'm just crafting an argument for my television show, right? I'm like, well, hey, I want to make sure I'm speaking to all Americans when I say this thing. And I want to make sure that, you know, every single person who watches this is going to have a you know, is going to have something to think about and is going to take it in. And I don't want to unnecessarily push people away. But at the same time, wait, I don't want my message to be controlled by the worst people out there. Right. Or worst is the wrong. Worst is the wrong word, because I'm not trying to, frankly, assign a moral judgment to the to the folks who have the furthest to go. Right. Right. I think that, you know, my response would be that we have to be sophisticated in tailoring our arguments. It's true that sometimes you're talking to a very wide audience, in which case you're going to have to make some choices

right do you go with the strongest most powerful framing of things which might be the equality argument um or do you choose another one uh because you decided that that's going to be more effective even if you lose some of that that, right? The sophisticated part of the message, too, is that sometimes you have to look at who you're talking in front of. You know, what you're arguing in front of a judge will be different than how you're talking to your fellow activists, right? So here's my example. Here's a real-life example from the Florida context. I don't know if you followed this amazing thing that happened in Florida, but Florida for years was one of the worst in terms of disenfranchising people who are convicted of crime. Yeah, formerly incarcerated. Yeah, absolutely. And this goes way back to that period that we talked about, right? Post-Reconstruction. And it's all wrapped up with slavery and keeping African-Americans down.

Yeah, these were Jim Crow laws that were still on the books preventing people who had been formerly convicted of a crime from voting for the entire rest of their lives. And it was like almost explicitly racist laws that were just still being enacted or still being held in Florida and other states. Absolutely. And Florida is very clever because what they did was they they didn't mention

race in the law. They just expanded the kinds of crimes, all felonies would would get you to lose your vote and then you would lose it for all time. And you could beg for your vote back, right? Essentially, you could, after you got out of prison, then go before a board kind of controlled by the governor and then ask for your vote back. But what we saw was a completely unequal pattern, right? For example, what we saw was that if it was a Republican governor, they rarely gave people their votes back and the rates were very low. If you had a Democratic governor, well, then they were much more aggressive in giving people their votes back. So you had that sort of partisan pattern. You also saw some disturbing things in the hearings. So you actually saw people kind of suggest how they might vote. Like, you know, oh, you know, if you give me my vote back,

you know, I might vote for the current governor as a, you know, as a way of, and it's, this is ridiculous. This is, you know, this, your right to vote should not turn on, right? Their prediction of what your political view. Well, and how many people are even going to this panel to do this process, right? And who are still being disenfranchised

because I assume you got to file your application. I bet there's a fee. You got to go down to the courthouse. You got to do all those things, which, you know, also serves to disenfranchise people who maybe don't have the means to get to the courthouse and et cetera, right? I can imagine. No doubt. And so, but that situation also illustrates that there are a whole bunch of different kinds of problems with that regime, right? There's a fairness problem. For instance, people might not have enough notice about how to proceed with getting their votes back. It turns out that this is a purely discretionary process they had. So it means that the governor could say no or the board could say no, and they wouldn't even have to give you a reason for why they said no.

Right. These are all fairness ways of thinking about the problem. There's the equality way of thinking about the problem, which is why a lot of activists were attracted to the issue. They saw how this regime disproportionately hurt African-Americans, poor people, et cetera, right? And then there's a free speech way of looking at the problem, which is that your fundamental right to vote should not turn on, right, how the state thinks you're going to vote or what values or agenda you have, right? That's totally antithetical to what we think about when we think about the First Amendment. So that's a great example where there's a menu of options in front of you as an activist, as a policymaker, or even as a concerned citizen. And which of those

arguments are you going to front load? Kind of depends on who you're talking to. And it turns out that in front of a federal judge, the most powerful way was actually to push the speech argument. And activists were able to convince a federal judge to say for the first time in the country that a regime like that actually raises free speech problems, okay? Even though in a previous case, a federal judge said there weren't any equality problems with that because the regime didn't explicitly single anybody out in terms of race, right, or sex or anything else, you see. So this tells us that sometimes the way that, say, lawyers think about equality can hamstring the kinds of solutions that we're able to come up with. Whereas if we shift gears a

little bit, say speech or fairness, we can sometimes deal with the problem. If you turn to how the activists were talking about this issue in the streets, they decided that the best way to think about it was mostly about speech and fairness, that it really was not really fair for people to lose their vote, to have to kind of run through this kind of Byzantine process, and then to have so few people get their votes back. And they were able to convince a huge number of people in Florida to pass this referendum that restored, at least in theory, the voting rights of like 1.3 million people. Yeah.

So you did see that, right. Yeah. So you did that. Yeah, I did see that. And that was one of the I mean, I've talked about felony disenfranchisement on our on our show many times. And so that was an incredibly encouraging result. Although now the the legislature there, I believe, has imposed all sorts of restrictions on that right. believe, has imposed all sorts of restrictions on that right. And I believe that the the people who want to take advantage of that, folks who are formerly incarcerated, who want to vote now have to pay onerous fees if they want to vote, which like in effect re-disenfranchises them because obviously so few folks who have been in prison for years are able to pay large fees. Right. Yeah. There's been a there's been a trend in recent decades. The Republican party tends to want to clamp down on access to the franchise. Whereas at least

lately, Democrats have been more interested in opening things up. And so the Republican controlled state legislature did do what you've described, which is to try to use the fees and fines as the hook for kind of disenfranchising people all over again. Now, that's still the litigation. And so activists have had to shift gears again in terms of the kind of arguments that they're using. And a lot of the arguments that have been gaining traction involve being faithful to this language that was passed by the voters. being faithful to this language that was passed by the voters. So you're saying that we should, when we're trying to make these changes, in addition to thinking about equality as a North Star, look at these other values that Americans share, such as fairness, and make those arguments as well, because often those might go

down easier, but have the same result. It's a little bit of a feint and say, OK, we're going to we're going to put forward the fairness argument now. Right. Right. That's right. And what I say, though, is think of it as a two step process. Right. If you're someone who has a very broad notion of equality and, you know, you're you're you consider yourself a progressive and you're and you really see a lot of issues within this frame, then it's okay to keep doing that. I'm not asking anybody to change fundamentally the way they see the world. But if you run into trouble, if you run into obstacles you can't kind of run over, and you need to convince someone who is a centrist or moderate, someone who has their hands on a level of power, the second judge on a three-judge panel, a governor who doesn't share

your broad view of equality, then you might need to shift gears. And that second step might be that you at least tactically, right, start to talk about the problem in a slightly different way in that context. There's kind of a couple of different moments where that might be necessary. So one is that there isn't a movement at your back, right? So there was a time when there wasn't a robust movement for African-American rights, just as there was a time when there wasn't a robust movement across the nation for gay rights. And, you know, the jury is still out whether we have or can come up with a broad scale movement in terms of immigrants' rights, right? That's sort

of a question that's still out there. But if the wind is if the wind is at your back, then go nuts. Right. I mean, that's the moment when you should be as expansive as you can. Right. If you see primarily in egalitarian terms. But a lot of times that's not the world that we face. A lot of times, you know, people don't you know, you're at the vanguard. You're you're you're you're battling during Jim Crow years of 1930s. So some of my examples come out of the 1930s and 1940s, before there was a civil rights movement. And in the places like the Deep South, in the places where, in the context where you're trying to convince a mostly conservative institution like the Supreme Court, right, the fairness argument,

or an argument about the right to counsel, something like that, that was the way to get people to be willing to see the inequities there and to do something about it. And when if they talk primarily in terms of black equality, white equality, they would have been shut down. Can't the things go hand in hand? Because, you know, I think about in the Jim Crow years. So, for instance, you know, on the one hand, I see your point. I think about Thurgood Marshall, right, going down to there's a wonderful book called The Devil in the White Grove, I believe, about Thurgood Marshall trying to trying to go down and, you know, get a save a man's life who's been falsely accused of raping a white woman. And he goes down there and he's like, I'm just trying to stop this guy from getting

the death penalty. We're not going to win this case. And that's the reality. And we're just chipping away as best we can. So he's not going down there thinking he's going to win the battle. Or sorry, win the war. He's just trying to make a little bit of a victory in the battle. Right. But then on the other hand, I think about, you know, the sanitation workers strike, for instance, where, you know, famous images of African-American men,

you know, holding signs that say, you know, I am a man. Right. Just that simple message. I am a man. Right. Just that simple message. I am a man. And that being, you know, that that always stuck out to me as like the the fundamental cry for equality. Right. And not just cry for it, like declaration of equality. And that was, you know, that was the Jim Crow South as well. Right. And I think at that time there were those two incidents were, you know, decades apart. But, you know, at the same time that we're talking about, hey, like it's not always going to you're not always going to be able to make that argument all at once. Like that must have been powerful at the time. There must have been it must have helped spur that movement and keep it going. No, no question about that. That's a great example. Right. Of how context matters and also in a way role matters, right? The people out on the streets are there to kind of change the underlying kind of social and political conditions, right, where policymakers, the people who are closer to the levers of power, are then able to kind of take advantage of changed circumstances. And so the people on the streets, the people wearing the signs saying, I think that this is an equality issue. I think this is also an issue about dignity, right?

Are expressing the kind of full range of the moral concerns. And my book is not about trying to constrain that aspect of things, I think. That's a necessary component. But we have to think about what they're doing and what they're up to. They're trying to empower people to make kind of material gains by passing laws, by making it harder for judges to be callous, right, to the defendants or the litigants who are pressing these cases in the courts. Because there are places where if you weren't out in the streets, judges would look the other way because they've always looked the other way, right? You raised the example of kind of Jim Crow criminal justice in places in the deep south.

I'm actually working on a project right now. That's all about that. And there are small town judges where, where they've done that forever, which is to have, you know, one day trials, uh, uh, a point, you know, appointed judge, uh, excuse me, point a lawyer who has no criminal justice experience, give them the death penalty. Uh, and, and that, you know, people are surprised, but this still, this still goes on. Really? Uh, yeah. Oh yeah. And, and that, you know, people are surprised, but this still, this still goes on. Really? Yeah. Oh yeah. Oh, absolutely. And, you know,

if there aren't people out there talking about the issue in very broad terms, showing that, you know, racial minorities and the poor are still getting kind of the shaft in the criminal justice system, you couldn't make some of the more kind of fine-grained arguments that you sometimes have to make in court. But that's recognizing exactly what you're saying, is that the people in the streets have to be making one set of arguments. Sometimes the people in the legislature and sometimes the people in the courts

have to make a slightly different set of arguments. I see. Well, we'll be right back with more Robert Tsai. Okay, we're back with Robert Tsai talking about equality and how we achieve it. What are some examples of cases where this has worked? You must have some where the, you know, the rather than the obvious equality based argument, a different argument was made to great effect. Absolutely. A really good one is is is the kind of litigation over the Muslim travel ban. A lot of people heard candidate Donald Trump promise, right, that he would shut down Muslim entry to the United States if he was elected president.

A lot of people believe that that was a problem of racial discrimination. One of the first things he did when he got to office was to issue a ban on entry of people from certain countries. Now, he didn't use the word Muslim. He didn't use the word religion. And that complicates things, because in the law, those differences matter. And so, you know, he was much more sophisticated about how he tried to fulfill this promise. And this kind of gave fits to a lot of judges. It made it harder for them to be able to agree to see this as an equality problem. decided to see it as simply a legitimate effort to deal with the entry of people from countries where our government was having difficulty getting kind of accurate information about their screening processes. This is the explanation that the administration's lawyers gave for having the ban in the first place. lawyers gave for having the ban in the first place. Meanwhile, Donald Trump is right now saying, look, I fulfill my promise of shutting down Muslim entry to the United States.

Right, right. The sharpest possible delineation between the language of the law and the language of the people who are making the law. Absolutely. And completely frustrating and in some ways, super outrageous, right? And I'm with those who see this issue primarily as an issue of religious equality. I think that ultimately what the Supreme Court did in upholding his ban was to kind of, you know, wink and say, oh, look, you know, we'll just accept at face value that you're not engaging in religious discrimination and that you really are seriously worried about the information you're getting. And we'll just ignore the fact that the countries you picked, at least most of them, were like 97% Muslim. That's just a coincidence, right?

Yeah. So I think that decision is a complete travesty and it's a stain on our country. decision is a complete travesty and it's a stain on our country. That said, what I do is I point to the fact that there was this difficulty in getting people to agree about how to see the problem, at least among people in positions of authority. And what I point to are the instances that we've now forgotten about, which is that some of the judges who first confronted the early versions of the ban in Seattle and in other places, that when they ran into trouble, what they did was that they shifted to the fairness argument. And that allowed them to agree and to kind of chip away at the bans. So, for example, in the first version of the travel ban, it actually applied to people with green cards.

So there were like tons and tons of people. I was once a green card holder myself. I'm a naturalized citizen. So actually, I actually was naturalized in Los Angeles after graduating from UCLA. My parents finally told me, you're not a U.S. citizen. All these years you thought you were. You know? Really?

You're not going to do something about that. Yeah, yeah. I was like... You grew up believing you were a U.S. citizen? For many years I did. I was like, you know, holy crap. I got to finally, you know, I got to finally do something.

And thank God I did. You grew up at the polling place and they're like, yeah, your name's not on the rolls. Right, like, give me a ballot anyway um you know so so you know uh but you know so i would have been in that category of people that um was affected by the original band and so there are people you know who are visiting uh relatives or friends out of the country and and then on a friday afternoon they just announced the band and people started getting yanked off planes, right?

Yeah. And so there were all these people who had signaled that they wanted to be American citizens. They'd started the process. They had deep ties with the country. And yet they were being mistreated in this way. And a lot of people sensed that this was an equality problem, but what's cool about this situation is that the judges were able to treat it as a fairness problem. That this group of people, the permanent residents, the green card holders, had all these expectations about their rights, right? And then suddenly, without any notice, without any chance to be heard, all those expectations were disrupted.

And they were yanked off planes and they were kept out of the country. And so because of the shift to the fairness problem, kind of grounds, these judges were able to kind of relieve the suffering of this huge group of people. And they didn't have to see it as an equality problem in the kind of traditional way that we would deal with the problem. This might be an obvious question, but what is the difference in your view between fairness and equality? Just because sometimes as you're talking, I'm like, I think I understand it. And then it slips away and maybe our audience feels the same way. Sure, absolutely. So when we think about equality problems, what we usually look for is a policy that treats people differently and oftentimes and this is this

is where this starts to become a little bit more legalistic you look for like a you know the state kind of singling somebody out like purposefully mistreating somebody discriminating against somebody consciously there's a lot of policies that have an effect, right? An unequal effect, right? Most policies have an unequal effect on the poor, for example, right? Just because of how things shake out. But they weren't necessarily written in a way to target the poor. It's just that's how things shook out. Well, the traditional way that we talk about equality is that we don't have a lot of kind of remedies for those problems where it just happens to be the case that things shake out unequally we primarily reserve equality

for problems where people are consciously mistreating somebody or treating somebody differently and this is part of the hang-up with talking about using the equality frame is that sometimes we have trouble identifying, right, purposeful discrimination or mistreatment. Yeah. And that's what happened in the travel ban case was, you know, they looked at the use of country of origin and they said, oh, no, you know, they're really not, they don't really have Muslim in mind.

They just have, you know, country of origin in mind. You see? Now, how is that different from fairness? Well, fairness is a little bit more flexible in lots of ways. And we often don't care about kind of purposeful mistreatment. We just ask whether somebody has an expectation to be fairly treated in some way. And sometimes we don't.

Sometimes there are things that we do, policies that we have, where there's no expectations that there's any kind of process that will happen. But then there are some situations like you have marriage rights or you're living in the country, you might have work rights, where we say that not only do you have those substantive rights, but your rights or your expectations can't be upset without giving you a chance to know about the possibility they will be changed, and some opportunity to contest it, right, to kind of weigh in and to fight back if you decide to do that. And that's how fairness arguments typically tend to go. That's how the lower courts in the travel ban case treated the situation involving permanent residents

and green card holders, right? So is the difference between saying, hey, this is unequal treatment, this is religious discrimination, this is racial discrimination, and saying, hey, this is unequal treatment. There's this is religious discrimination. This is racial discrimination. And saying, hold on a second. There's a lot of people who they got their green cards. They followed the process.

They did everything that was asked of them. And then they're they went through security and they're on their way to the plane. And then suddenly they're being kicked off. They're they're they're they're abandoned, et cetera. etc right like it's uh their whole their travel plans are fucked up people shouldn't be subject to this that's unfair that's like shitty treatment and that would make anybody imagine if that happened to you that would make you pissed off regardless of the sort of unequal part of it and that's a that's a fair point i've heard that type of argument made about issues like this in the past, where you sort of like put discrimination off to the side for a second

and say, hey, this is like a bad way to treat people. This is unfair. Right. And the way you put it is perfect because the way you just described it, you can still make a fairness argument with a sense of outrage, right? You're just shifting the focus of the outrage. With equality arguments, our outrage is, hey, there's a group of people. You singled them out. You've mistreated them. You've shown them that they're unequal, right? This is, you're degrading their status and their dignity, right?

And the way you put it about fairness, it's, hey, you know, you shouldn't have done this. You guys are being jerks. But the focus of the outrage is the process. Right. It's the it's the callousness in the sense that you shouldn't mess with our rights and expectations without at least giving us a chance to fight back. Yeah, I remember, I have another good example of that. We were talking about like, in an early episode of Adam Ruins Everything, we were talking about the criminal justice system. And we were talking about how criminal justice system and we were talking about how what exactly was the argument it was that uh so much of the time judges and juries will make decisions based on their stereotypes of the people uh in the witness box or on the defense stand uh etc right um and how that'll affect the criminal justice system. And you can look at that and say, hey, that unfairly, or sorry,

that unequally targets like minorities and this already oppressed group, which is very true. But you can also say to people, hey, hold on a second. We all agree that's not how a criminal justice system should work, right? People shouldn't be making decisions based on these sort of gut reactions. It's supposed to be about what happened in the case, right?

And this could happen to you for any number of reasons, just like if they didn't like your face, what if you're an ugly person? What if you're a, you know, et cetera, like anybody could, could be treated unfairly in this way. And that's like a slightly broader argument that hits a lot of the same points and maybe accomplishes the same goal, but is just hinging on a slightly different, a slightly different part of it. Yeah, this is right. I think that in certain contexts, like you raised the criminal justice system, fairness arguments are going to have more traction generally in that context and in other contexts like, you know, education most of the time or marriage or something like this, where people broadly have access to it. We don't have, you know, beefs with, as many beefs with kind of individualized treatment.

Once someone has been pulled into the criminal justice system, so long as there's like some legitimate basis for charging them, right, we think we're in a different world most of the time. And in that domain, like the goal isn't to create kind of perfect and equal citizens, right? In the same way in prisons, most people who are running the prisons and making policy for the prisons don't think that their task is to ensure a perfectly equal society behind bars, right? Instead, they see their goals in much narrower terms. They want accurate results. They want to weed out unfair things that happen.

out unfair things that happen. And knowing that, sometimes if you shift gears to a fairness argument or a right to counsel argument or something about juries, right, having a fair cross-section of juries, like if you shift the arguments slightly, you might be able to pull to your side someone who doesn't, you know, share your otherwise very broad, you know, equality-based view of the world. I got a good example of that. There was a recent case, you know, where Justice Roberts was convinced to really go on at length about how at times in a criminal case, there could be kind of racially problematic stereotypes that get bopped around. And what happened in this particular case was some poor guy's attorney put on a so-called expert, but that expert then said a bunch of stuff that hurt his own client's defense. For example, a bunch of stuff that hurt his own client's defense. For example, claimed that if you were black, that you were more dangerous, right? That there was a greater risk that you might

re-offend. And this is a hugely dangerous and racist assumption, which the defendant's own lawyer, you know, elicited from the expert. Well, most of us would see this as a huge equality problem, as you say. What convinces and outrages Justice Roberts is that he sees it as a right to counsel problem, that he says, hey, look, this guy was, in a sense, a terrible lawyer, right? And it violated basic notions of fairness for this guy to be convicted. Right. It affected the accuracy of the outcome for him to allow this guy to go on and on. Because what might have happened then, although we're not 100 percent sure, but there's now a risk that some jurors, you know, latched onto that and said, hey, you know, this expert is talking about how black people are more dangerous. hey, you know, this expert is talking about how black people are more dangerous.

This defendant is black, that they actually put him behind bars or gave him a longer sentence in part because of that racist stereotype. And you see, now it only affects that one case at that one moment. So it's a very narrow outcome. But that's also a win in the sense that that's a win that can be built upon by people, right, who have broader views of equality. You can take that and you can try to run with it and you can try to get some policy changes, perhaps. You can try to expand that rationale that a very conservative justice, you know, agreed to and wrote the decision about into other contexts. If you if you if you work hard at it. Yeah. And so I assume that you would put this forward as like, hey, this is a this is a path that folks who care about equality could use when arguing in front of our new Supreme Court,

which is, you know, a lot different in makeup than it used to be. which is, you know, a lot different in makeup than it used to be. But do you think it has a chance against, you know, when you look at the folks who are, you know, petitioning the court on the other side of these issues, right, are often making sweeping arguments, right, based on their own principles about equality, you know, about how they see the world, right? And do you think that sort of incremental chipping away of, hey, we got John Roberts to agree with us on this narrow point, and then maybe someone will be able to push the ball forward again in about 10 years, right? Does that have a chance of bending the long arc of history the way we want it to when there are other forces that are bending it so hard in the other direction?

I think it depends on the on the issue in the moment. So for some issues and at some moments it can work. about right now is what lawyers and activists who are kind of death penalty abolitionists did between the 1980s and kind of up to this moment, which has generally been pretty conserved and pretty awful for people who at least face the possibility of being executed. And they had to kind of retreat to a fairly narrow position, but then they kind of maximized all their arguments that they could and what they were left with or arguments about how the right to counsel means that you have an effective, a minimally competent lawyer. And so you shouldn't have a lawyer who's asleep. You shouldn't have a

lawyer who's drunk. You shouldn't have a lawyer who's drunk. You shouldn't have a lawyer who doesn't know anything about criminal law, right? You shouldn't have a lawyer who talks about you in racist terms and basically says, I hate my client, you know, but here I am defending him. And what these activists and lawyers did during this very conservative period was to use these narrow arguments about right to counsel or fairness, like what does fundamental fairness require in a trial where someone is facing the death penalty? And they showed how unequal, actually, the death penalty system was, right, that it still ended up singling out poor people and racial minorities for death row. And so, for example, in Georgia, you know, at one point, it was like, despite the fact that most, something like 65% of victims of crime are African American, at one point in the early 90s,

in the early 90s, something like 16 of 18 or 14 of 16 of people actually executed for crimes where African Americans who killed a white person. But what they did, though, was to show that there is inequality, but they used these vehicles that were narrower in order to kind of build the broader case, if that makes any sense. And so it kind of depends on the issue and depends on the moment. And I think that they were very much able to kind of put the death penalty, for example, at this moment where we are now, where it's almost practically abolished in terms of carrying it out. That the number of people that are put on death row have dwindled over the years. A lot of people who say they're for it in the abstract

don't want to be responsible for carrying it out. But that's human nature. But it's good that we now know that. So we've got a lot of these laws on the books, but through this advocacy, essentially, right, we're tying to the point where only a few counties across the country are responsible for most people on death row. And in that way, you know, yeah, yeah. In that way, that puts us closer to most other other civilized countries.

And when I think about, yeah, I mean, those chipping away arguments really do work um uh you can you can make a large change through small arguments that uh appeal to the uh folks in power over and over again it's not the only way that you can make change and sometimes it's not enough but it is like a tool in our toolbox that we should not ignore. That's a great way to think about it, is that most problems of inequality, especially if you think that they're structural in nature, there's a lot of complicated things going on. And if that's right, that there's a lot of complicated things going on, then we should use every single tool that we might have at our disposal to chip away in all these different ways. And if we have enough success instead of a bunch of failures, right? Because if you get a bunch of failures, that's the worst kind of thing that could be, that we could get for equality. That will really set us back. But if we can get a bunch of small wins even, then the occasional big win, that's really what we should be aiming for. Well, I thank you so much for coming on the show to talk to us about it.

Absolutely. Thanks so much for having me. Well, thank you once again to Robert Tsai for coming on the show. I hope you enjoyed that conversation as much as I did. Thank you for listening. I want to thank our producer, Dana Wickens, our engineers, Brett Morris and Ryan Connor, our superstar researcher, Sam Roundman, Andrew WK for our theme song. I am Adam Conover. You can find me on social media at Adam Conover and at Adam Conover dot net. And until next week, we'll see on factually.

Stay safe and keep those hands washed, everybody. That was a hate gun podcast.