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.