Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Stephanie Barclay

In his ambitious new book, Constitutional Symmetry: Judging in a Divided Republic, Zachary Price tackles one of the most pressing challenges facing American constitutional democracy: how courts can effectively adjudicate politically charged cases in an era of intense polarization. Price presents a framework for judicial decision-making that aims to reduce the political temperature while maintaining the legitimacy of constitutional interpretation. Price's core argument is that courts should strive for “constitutional symmetry” by applying consistent interpretive principles across ideologically different cases and by actively seeking to frame their decisions in ways that acknowledge and respect competing viewpoints. This approach, he contends, can help prevent constitutional law from becoming merely another battlefield in America's culture wars. The book points to illustrative examples of how courts have alternatively succeeded or failed at achieving this balance throughout American history.

One of the book's greatest strengths is its detailed historical analysis of how courts have navigated politically charged cases in previous eras of intense polarization. Price draws fascinating parallels between contemporary challenges and similar moments in American history, from the early Republic through the Civil War era and into the twentieth century. This historical perspective helps readers understand that while our current political divisions may feel unprecedented, the judiciary has long grappled with similar challenges.

While Price offers valuable insights and practical recommendations for judicial decision-making, his analysis of certain key cases reveals both the promise and limitations of his central thesis, particularly when examining the complex dynamics between court decisions and media coverage.

The Kennedy v. Bremerton School District case, discussed in Price’s book, serves as a perfect example of how even careful judicial decision-making can be overwhelmed by polarized media narratives. Price argues that in Kennedy, “The Court could have made its decision more symmetric by . . .  highlighting the decision’s benefits for other, quite different speakers.” In Price’s view, this could have “helped defang some progressive criticism of the decision as entirely one-sided and result-driven.” The problem with Price’s critique of Kennedy is that the Court did point to these sorts of symmetrical examples. For example, it noted that the School District’s Logic, if successful, would have meant that “a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”

What really drove much of the polarization surrounding Kennedy was a skewed reporting of the facts of that case in the media. And Price’s analysis of the case misses an opportunity to explore how the Supreme Court’s measured approach was ultimately overshadowed by mischaracterizations of the case in both the dissenting opinion and subsequent media coverage.

The actual facts of Kennedy, as revealed in the detailed record, paint a notably different picture than what was portrayed in much of the media coverage. After receiving an initial complaint about his practice of praying with students, Coach Kennedy willingly modified his behavior. After a September 2015 letter, he stopped participating in locker room prayers and ceased his postgame religious talks with students. What remained at issue was his request to offer a brief, personal prayer of thanks at midfield after games, specifically at a time when his students would be otherwise occupied.

As documented in his correspondence with the school district, Kennedy explicitly stated he would “wait until the game is over and the players have left the field” before walking to midfield “to say a short, private, personal prayer.” He even testified that he was willing to pray “while the players were walking to the locker room” or “bus.” This reasonable accommodation request stands in stark contrast to the “spectacle of delivering midfield prayers at the immediate conclusion of games and insist[ing] that students must be allowed to join,” as characterized by the school district and later emphasized in Justice Sotomayor’s dissent.

The school district’s position wasn’t just about student participation—the officials believed the Establishment Clause required prohibiting Kennedy from engaging in any “public religious display,” even if students were in the locker room or on the bus.

The media’s portrayal of the case largely adopted the framing from the dissenting opinion, focusing on earlier photos of Kennedy praying with students prior to September 2015. The media ignored entirely the crucial three games in October 2015 for which he was actually disciplined. During those games, after the Coach had agreed to stop praying with students, he prayed briefly and alone. No one alleges that Kennedy’s own students participated in those prayers, and there are no photos of those games to that effect. This distinction was central to the Court's analysis but largely lost in public discourse.

This distinction is important because it highlights a crucial challenge that Price’s framework doesn’t fully address: how courts should approach their role when even carefully crafted, non-polarizing opinions are likely to be interpreted and presented to the public in polarizing ways. The Kennedy case suggests that achieving “constitutional symmetry” in judicial opinions may not be sufficient to reduce political polarization if media coverage and public discourse continue to frame cases in stark partisan terms.

In conclusion, Constitutional Symmetry is an important contribution to the ongoing debate about the role of courts in a polarized democracy. While its analysis of certain cases like Kennedy could be more nuanced, the book’s overall framework provides valuable insights for judges, lawyers, and anyone interested in the future of American constitutional law. Price’s emphasis on the importance of judicial rhetoric and consistent interpretive principles offers some valuable insights.

Despite its limitations, “Constitutional Symmetry” makes intriguing arguments about how courts can work to reduce rather than exacerbate political polarization through careful attention to both substance and style in their decision-making. The Kennedy case demonstrates that achieving this goal will require not only careful judicial decision-making, but also a broader strategy for ensuring that courts’ actual reasoning—rather than oversimplified characterizations—reaches the public. From that perspective, the book rests too much of this burden with the courts. Perhaps the media and other commentators of the Court could do well to implement these lessons themselves, as they may be the more significant drivers of polarization.

Stephanie Barclay is Professor of Law at Georgetown University Law Center. You can reach her by e-mail at stephanie.barclay@georgetown.edu.