Rights as a Zero-Sum Game

White Americans are increasingly expressing anxiety about anti-white discrimination, with more than half of the respondents in a recent survey embracing the view that it is “as big a problem” as discrimination against people of color. This startling and inaccurate assessment is perhaps best explained by research revealing that many Americans view rights as a zero-sum game, in which advances for some necessarily bring losses for others. This attitude toward rights has enormously troubling implications, and we ought to commit ourselves to understanding it as well as we can. In this Article, I provide a taxonomy of racial attitudes revealed in recent social science research, showing how the zero-sum premise is particularly corrosive to our aspirations for racial justice. I then explore the doctrinal underpinnings of this deeply pessimistic view of rights and racial equality. I show that equal protection jurisprudence reflects and facilitates the zero-sum premise in a number of ways. First, with a few highly consequential doctrinal moves, the Supreme Court has crafted an equal protection landscape that primarily protects white claimants protesting the remedial use of race by government actors, making “discrimination” against whites highly salient and constitutionally significant. Second, the Court’s equality jurisprudence has allowed the State to meet its equal-treatment obligations by equalizing down rather than up, choosing the “equality of the graveyard” rather than the “equality of the vineyard.” Third, the Court’s persistent refusal to interpret the Constitution as providing anything other than a “charter of negative liberties” means that there is no real floor to how far this downward-equalization could go. In combination, these doctrinal principles send the message that equality is something for historically powerful groups to fear.