Document Type

Article

Publication Date

2020

Abstract

Constitutional equality law has a two-way ratchet problem. When someone demonstrates that a government policy treats her unequally, the injury can be remedied by improving things for the claimant, but it can also be remedied by leaving the claimant’s status unchanged while making things worse for the people advantaged by the policy. If a court chooses the latter option, it diminishes the welfare of some people while arguably not improving welfare of anyone else. Why is that a good idea?

Courts have often attempted to avoid hard questions like these by leveling up – that is by allowing advantaged persons to keep their advantage and extending that advantage to the previously disadvantaged class. But not always and not lately. In two recent cases, the Court required the government to level down, and the Court’s opinions hint that it may do so more often in the future.

If one looks beyond these two cases, things are actually much worse. The first Part of this Article surveys the chaotic landscape. At various times, the Court has held or implied that:

  • Courts faced with an equality claim must level up;

  • Courts faced with an equality claim must level down;

  • Courts faced with an equality claim may level up or down;

  • Courts faced with an equality claim should guess whether Congress preferred leveling up or leveling down;

  • When a federal court lacks the power to order a state to level up, it should dismiss the case;

  • Because a court could theoretically level down, it should deny the equality claim entirely and therefore leave the original inequality undisturbed.

How might we clean up the mess? A promising strategy is to map various solutions onto the functions served by equality claims in the first place. Part Two undertakes that task. The problem is that the Justices have been unable to agree on and consistently apply a single, normative justification. The ratchet wreck is therefore epiphenomenal. It is an external manifestation of the Court’s confusion about the reasons for equality. Confusion about reasons unsurprisingly begets confusion in outcomes.

Part Three, concludes with the observation that our ratchet difficulties reflect a still deeper ambivalence about the equality requirement itself. The potential for downward ratchets is necessary to make that requirement meaningful, yet the seeming irrationality of this remedy obstructs a full-throated embrace of the equality norm.

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