John Blomster: Welcome to Discovery, an all-new podcast presented by the University of Washington School of Law. I’m your host John Blomster and today we’re speaking with Robert Tsai, professor of law at American University. Professor Tsai specializes in various areas of the law, including civil rights, constitutional law and jurisprudence, and he is the author of a newbook, Practical Equality: Forging Justice in a Divided Nation. Today we are discussing a topic that grows out of the book and is thesubject of his latest paper, “Avoiding Complicity.” Robert, thank you fortaking the time to speak with us.
Robert Tsai: Thanks for having me.
JB: Can you tell us a little about the book and how it inspires the topic that we’re talking about today?
RT: Sure, happy to. The book, Practical Equality, wrestles with the struggles that Americans have had throughout history in trying to achieve a more perfect union. And, a lot of this has to do with figuring out why it is that we continue to have struggles over inequality, and really understanding the kind of objections that keep coming up over and over. When we look at the constitution of the United States or the Declaration of Independence, we see this very broad language that if you ask people whether they accept the idea of equality everybody will say “Oh, of course we do. We believe in equality.” But then we see that disagreement really starts to come in, that agreement starts to break down really quickly once we start to get specific about actual disputes. So, that is what this book is about. Trying to understand why we continue to have those disputes. And then a lot of it is also about proposing, kind of, workarounds to deal with those situations where we keep running into these same kinds of difficulties.
JB: And so, growing out of that, this idea of judicial complicity is a tremendous factor when it comes to the idea of equality and these cases. And so can you explain a little bit what is judicial complicity? And what are the challenges that it presents?
RT: Sure, this new idea that I’m trying to work out really is focusing in on the judge’s role on ratifying, promoting or otherwise being deeply involved in policies that are unequal. We’re often use to giving judges a pass. As long as they wear their robes and they carry their law books and they write opinions that seem legible, then we often say that judges, or we’re use to saying that judges, are just kind of doing their jobs. But I think that’s too simple. I think that if we look at these struggles very carefully we’ll see that committed political actors that want to do something to harm a political group have often kind of confidently predicted that judges would fall in line. And so this concept of judicial complicity is about trying to figure out when can we say that judges have sort of crossed the line into being kind of morally responsible for the terrible outcome? A deeply undemocratic outcome that happens. When can we say that the judge is doing it, as well as the elected official?
JB: And all of this takes place in terms of a broader social landscape, right? It’s not just about interpreting the wording or the letter of the law necessarily. So where is that responsibility for judges to see these issues in a broader social landscape, which of course is always evolving.
RT: Yeah, so, that’s what makes this project kind of tricky and challenging, but also fun to think about because we have to come up with an account of complicity that is fair to the judge because it is true that the judge’s role in democratic society is not the same as the role of an elected official, right? So, we have to account for the fact that sometimes people lose and judges, you know, have to say that someone has lost and they’re not necessarily being complicit in this sense that we’re trying to identify, where they really agree with the bad outcome and that the bad outcome is so bad that it’s really about keeping some group down. That’s really what we’re after and just to put some meet on the bones, one of the historical examples that we talk about is a situation that happened after reconstruction where a number of legislators specifically wanted to come up with laws that could reduce the size of the black voting population. And so, they passed a whole bunch of laws, and many of them were criminal laws, that ended up disenfranchising African-American voters, but they didn’t once use race of the fact, you know they didn’t mention the fact the people who were formerly slaves were being affected. They just came up with these proxies that they thought would do a pretty good job of doing that work. And, when you read those debates, or at least when I read those debates, I kept seeing how confident they were that when these things were going to be challenged in front of judges, those judges would have no trouble upholding them. And so, that caused me to really think that, you know, there’s got to be some of talking about the judge’s role in all of this. And, that’s kind of where we are.
JB: That was a modern example that you talk about in the paper is Trump v. Hawaii. So, as you discussed, how is the travel ban and the subsequent 5-4 decision a modern example of that complicity in action?
RT: Yeah, it might be. I’m not yet sure if that’s the best way to think about it, but it might be and I’ve certainly heard progressives talk about it as an example of, sort of, judicial complicity in terms of wanted to facilitate what the president did and may be doing it in a way that really puts the court fingerprints on it, more than usual, shall we say. But, it can be hard to figure out whether we really want to think about that situation in this way. It was a very close decision. Usually, when you have a very close decision it means that justices on both sides were pretty engaged, pretty activated. And that alone doesn’t necessarily mean the judges, the justices in the majority were trying to hurt the Muslim population in a deep sense. I don’t think that that’s necessarily what’s going on. The question is like, “What if that was going on?” How would we be able to tell that that was going on? That some of the justices really wanted more of this sort of a thing? And it can be really hard to tell. So, in the paper, I suggest there might be some things in there where the justices were fairly flexible in the way they were thinking about certain kinds of questions and those might be a little bit of a red flag. So, for example, one of the things that happens in the opinion is that the justices are trying to figure out whether to take the president’s anti-Muslim comments—of which there were many, right?—while he was campaigning for the office and then even after that, that he kept describing this as basically his effort to fulfill the promise of a Muslim shut down. Well, what do you do with that, right? And the justices really sort of punt on that question. They don’t treat it as evidence of this sort of evil motivation. When I say “evil motivation” I do think that there’s enough in our cases that have suggested that if someone is taking action against someone because they disfavor their religion that really is a democratic evil. That is something that we’ve said shouldn’t happen. But they don’t, they’re not willing to take his comments as evidence of that motivation. And they’re a little slippery here about when in the future this evidence will be taken into account. And I just find that to be a little bit of a red flag. That could be taken as evidence of complicity, but we’ll see what others think.
JB: Absolutely. So, for members of the general public. People who are reading the papers or staying up on cases. What are ways that are those, kind of, red flags that people can I identify judicial complicity? Or, maybe, start think about things through that lens.
RT: One of the things that I talk about also is we should pay attention to the way judges talk. And if judges in their opinions, for example, or even in their questions of lawyers and their clients if they say things that are derogatory about a population. And we’ve got historical examples of this in the past where the Supreme Court has described African-American people in derogatory terms or perhaps a religious minority in derogatory terms. That would be another kind of clue, if they see a certain sector of society in that way, they might be more willing to be involved with, to ratify certain kinds of oppressive measures. So that would be another example of a sort of clue that we’ve seen in the past. And if we saw that again, judges talking about groups of people that way. So, let’s say we had a judge talk about gay people in a very derogatory way. To me, that’s something you would want to pay attention to. There’s an older case that we teach in constitutional law called Bowers v. Hardwick. And there’s anti-gay stuff all the way through that, to the point where one of the justices talks about how long there have been laws against sodomy, including the fact that people used to be killed for this. And he’s citing this for the proposition that there’s really nothing here of importance to worry about. To me, that’s pretty strong stuff.
JB: Finally, what advice would you give to future aspiring judges to grapple with these issues while still avoiding these moral pitfalls?
RT: I think one of the things judges have to think hard about is when they’re being asked to endorse or uphold some policy that does seem deeply inconsistent with the values this country has stood for—notions of religious freedom or racial equality. And if they have some evidence of it going on, but it’s not enough for them to rule for the individual, then at that very moment the judge should be very careful about how the judge talks about it. You can be very dismissive of what’s going on and I think this can be a very bad thing. You can wind up saying something that is very deeply demoralizing to a certain sector of society and make them think that as a judge you are in fact complicit in the wrongdoing of the terrible policy that has been enacted, even when maybe all you’ve done is you’ve just said “Hey, you know, it’s not met the threshold.” But, if you’re very dismissive, if you’re derogatory toward the social group, if you’re a little too tricky with the way you’re using the cases, these are all things we ought to look at. And if all of these things, or many of these things, are going on then judges too ought to be called out for being responsible in part for what’s happened.
JB: Robert Tsai is a professor of law at American University and author of the new book Practical Equality: Forging Justice in a Divided Nation. Thank you so much for joining us here on Discovery.
RT: Thanks for having me.
RSS feed
Apple iTunes
Spotify
Amazon Music