Professor Robert Tsai · March 2020
88 Geo. Wash. L. Rev. Arguendo 1
This essay examines the Supreme Court’s stunning decision in the census case, Department of Commerce v. New York. Professor Robert Tsai characterizes Chief Justice John Roberts’s decision to side with the liberals as a collective effort to pursue the ends of equality by other means—by subjecting the government’s action to the rule of reason. Although the issue for appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, five members of the Court found the justification the administration gave to be a pretext. In this instance, official lies had a major consequence: Republican officials were not permitted to carry out their apparent scheme to engage in partisan entrenchment by depressing census responses from Hispanic citizens and undocumented migrants. Professor Tsai defends this creative effort to manipulate the political value of time and shows how the Court’s rationale operates as an effective substitute for the principle of equality under difficult circumstances. Unequal policies flourish in an environment where mendacity by public officials is tolerated. It follows that by ensuring there are consequences for policies backed by lies, judges can make it harder to target political minorities with impunity.
