The Identity Trap: A Story of Ideas and Power in Our Time

by Yascha Mounk

The legal framework embraced by both progressive judges like Ruth Bader Ginsburg and conservative judges like Antonin Scalia can set better guidelines for when to adopt race-sensitive public policies. There should always be a strong presumption against the state making how it treats people depend on identity markers like the color of their skin. This presumption can be superseded only when three strict conditions are met: There must be a compelling state interest in pursuing the policy. The policy must be narrowly tailored to achieve that interest. And race-neutral alternatives to the policy must be unavailable. For all these reasons, it is both a moral and a practical mistake to turn identity-sensitive public policies into standard operating procedure.