Symmetry’s Domain II

Guest Blogger

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

Mike Greve

Constitutional Symmetry is vintage Zach Price: judicious, learned, lawyerly, fair-minded, unfailingly respectful of differing opinions and commitments. The book is also admirably clear about symmetry’s envisioned role in adjudication. It is to operate at a high level, as opposed to judicial maneuvers that toss opinionated bones now to this camp, now to the other. It should operate within the framework of a sometimes asymmetric Constitution and of the judges’ jurisprudential commitments. It is not a rule but an ethic, an orientation, an all-else-equal preference.

I can’t see anything wrong with that, and I commend Zach for showing, in many thoughtful chapters, what constitutional symmetry might imply and how it might work in highly contested areas of law and public debate. I come, then, not to oppose but to sow confusion, or at least to admit to my own.

The symmetry Zach has in mind is “partisan and ideological.” I get the partisan part: red and blue, fifty-fifty, polarization, constitutional hardball and flagrant fouls. Symmetry is surely worth having under those conditions; but it’s also most likely to show up at such times, is it not?

No symmetry can be had when a Court’s legitimacy hangs on playing out the program of a durable, dominant political coalition. (The post-New Deal Court’s Constitution never had any Republicans in it.) When no such coalition exists and none can be expected to emerge any time soon, judges must anticipate that the partisan worm will turn. Symmetry is the only plausible course of action. My own worry about the current Court, then, isn’t so much a lack of partisan symmetry; it’s the Justices’ lack of clarity and candor with respect to the partisan dimensions of their rulings. I’ll come back to that.

I am much less sure about “ideological” symmetry. As Zach notes, it doesn’t map onto the partisan divide, for the simple reason that neither party professes anything resembling a coherent set of beliefs. The closest one can come, perhaps, is a demographic divide: rural deplorables who cling to guns and religion, versus urban sophisticates who want to banish those things. However, a jurisprudence of tribal symmetry is obviously not what Zach has in mind.

Zach’s chapters on symmetry-in-action effectively disaggregate contentions on hotly contested issues: guns, religion, affirmative action, voting rights, and more. Symmetric answers to these sorts of questions, however, tend to be structurally different from partisan symmetry. Partisan symmetry is generally about decision rules. The President either gets to fire officers, or he doesn’t. Congressional committees get to enforce their subpoenas in court, or they don’t. State AGs get injunctions against the feds in their home courts, or they don’t. You can favor one arrangement or the other but, barring some gerrymandered contrivance, evenly matched camps will win some and lose some.

Issue-oriented symmetries, in contrast, usually require distribution rules. Rules of that description govern zero-sum games, which entail perennial litigation over inches and chronic instability over time. They are “symmetric” only in the sense of representing interest group compromises that seem tolerable at the time. On many of the aforementioned issues, the Supreme Court’s decisions were intentionally symmetric in this distributional sense. Casey’s “undue burden” test comes to mind, as does Bakke’s quotas-are-okay-so-long-as-you-lie-about-them regime.

Speaking of which: Zach cautiously argues that symmetry permits, and may counsel, affirmative action policies to some degree, in some settings—something like a “Bakke with teeth,” perhaps, or preferential policies that come at some cost to the enacting majority, or facially race-blind policies that are reverse-engineered to produce the desired mix. What exactly, though, is the desired symmetry on college admissions, and among whom--voters? Large majorities have voted against affirmative action.  Folks of different colors? That looks like the worst kind of stereotyping. Legal theorists who variously advocate a “neutrality” or an “anti-subordination” theory of the Fourteenth Amendment? They’re not going to settle for some artful compromise; and in any event, who cares?

Why not simply argue that formal race neutrality is the symmetric rule? I get it, I think: that would look like the conservatives won and the DEI industry lost. But that isn’t how the world works. If colorblind apostles were truly serious about their meritocratic convictions, they might want to pursue a disparate impact theory: “Given the applicant pool, there cannot be more than a dozen black students in any Harvard Law class. If there are, we’ll assume that HLS discriminated and make the administrators prove the opposite.” That is the only anti-circumvention rule with teeth. Thankfully, though, no one has advocated it, and no one will. Thus, the affirmative action machinery will grind on—more surreptitiously and without the now-toxic DEI label but efficaciously. Zach acknowledges as much, sans my snark. And if I understand him correctly, he suggests that neutrality may be the only rule that holds a promise of remaining stable. It has the added advantage of telling ideologues on both sides: don’t push too hard.  What’s there not to like, or at least to not find intolerable?

Consider a somewhat different illustration of the baseline problem: the administrative state. In an insightful chapter, Zach argues that Chevron’s demise (which occurred after the book went to press) will have asymmetric consequences. Pro-regulatory constituencies and administrations have a far greater stake in making old statutes do new tricks than do free-marketeers. Courts, Zach urges, should make an offsetting move: ramp down State Farm review of the agency’s reasonableness. I am totally on board with that program, for conventional (okay: “anti-administrativist”) reasons: a world in which courts cut agencies slack on the law and then probe their record and policy decisions for reasonableness is Marbury upside down. In contrast, symmetry between pro- and anti-regulatory constituencies strikes me as a questionable objective.

If you believe that the world is one vast common pool, to be managed by whosoever runs OIRA, why then yes: ensure parity and symmetry between regulatory beneficiaries and regulated parties. If, on the other hand, you believe that the Constitution makes no sense except against a robust presumption in favor of private orderings, you will want the nudgers and hatchers of great plans to overcome serious obstacles before bothering the rest of us. This, I submit, is one of the instances in which the Constitution is deeply, deliberately, incontrovertibly asymmetric.

Any supposed symmetry between pro- and anti-regulatory camps is illusory anyhow, because only one of the camps is armed. Thus, if a spotted owl (an Oregon spotted owl. She is genetically identical to the non-endangered California spotted owl, except she parts her hair on the left) might one day land on your property, in the spot where you intended to build your house, the bird wins and you lose. Likewise, if you can no longer buy a washer or dryer that works, that’s on account “regulatory beneficiaries” who earn a living by muscling public values into private abodes.   

Perhaps, the “symmetry” one might want is between the rulers and the ruled. As it happens, Chevron speaks or spoke to that question, though not in a good way. “We realize,” it permitted immigration authorities to say, “that you based your citizenship application on our rule, which the courts had declared ‘reasonable.’ But for the purposes of your pending proceeding we have a new reasonable rule and guess what, sucker: you’re deported.” (Real case, Tenth Circuit. https://www.ca10.uscourts.gov/sites/ca10/files/opinions/01019510019.pdf It made then-Judge Gorsuch’s blood boil.) A government that already holds all the cards gets to play with house money and change the rules midstream: that was Chevron. It does not seem sporting, or symmetric.

My musings over the baseline problem are a long-winded way of saying this: I suspect that symmetry’s true domain is partisan politics, where the baseline is both clear and highly salient. And here, Zach may actually be under-pleading a very strong case.

Start with Rick Pildes’s and Daryl Levinson’s justly famous article: we have a separation of parties, not powers. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=890105 Whether and how one might adjust separation-of-powers jurisprudence to that reality is a very hard question. One thing is certain, though: if you cram obviously partisan brawls through a framework of empire-building “branches,” you are bound to make bad mistakes and look a tad silly in the process. A single example shall suffice.

The Obama Administration’s duplicitous lawyering in the fight over the Defense of Marriage Act produced several Supreme Court opinions on the question as to whether BLAG might have standing to defend DOMA. Leave aside that no one called “BLAG” should ever have standing: BLAG (in British English, meaning “obtain by deception”) was the “Bipartisan Legal Advisory Group,” where three Republicans outvoted two Dems and went to town. Yet the Justices’ opinions earnestly burble about standing for legislators who assert “institutional interests”—as if the GOP BLAGgers had any such thing in mind; as if they were credible representatives of the institution. To this day, legislators’ standing has remained a disaster area. How many legislators do you need? Do they have to be committee members? Do you need one chamber, or both? What if members from both parties purport to represent “the Congress,” on opposite sides of the same case? All highly manipulable, and therefore manipulated.

Zach Price to the rescue: focus squarely on the partisan dimension; aim for symmetry over the long haul. My own choice would be to throw “institutional” litigants out on their rear ends. (Federal courts did not entertain any such “cases” until fifteen constitutional minutes ago.) Failing that, cases involving congressional subpoenas directed at executive officials may provide a template. In a leading case, https://www.supremecourt.gov/opinions/19pdf/19-715_febh.pdf Chief Justice Roberts subjected such subpoena proceedings, in federal court, to a multi-part test—each prong a vague standard; each highly fact-intensive and time-consuming.  Would I defend that ruling as a matter of high constitutional principle? Not while I’m trying to keep my job. Might it be a symmetric rule and, equally important, the right symmetric rule? Absolutely. It tells rabble-rousers on both sides: you’ll never see the end of day in these proceedings. Don’t even try.

A final point along this line (a perennial bee in my bonnet, and thanks to Zach for giving it air in his book): federalism has become a partisan domain, and the Supreme Court has made a mess of it. This issue, too, illustrates the importance of not just choosing a symmetric rule, but the right symmetric rules.

Zach’s principal example is National Pork Producers Council v. Ross, https://www.supremecourt.gov/opinions/22pdf/21-468_5if6.pdf where the Court upheld a California law prohibiting the sale of pork products unless the pigs were raised under conditions deemed humane in La Jolla. (Sunlight, space, and a weekly massage. From spa to table.) California has virtually no pork producers. Thence, the state’s extraterritorial California Uber Alles https://www.youtube.com/watch?v=R-rDQs5NOP4 policy (one of many).

The Supremes waved this through. In a particularly preposterous paragraph, the Court invoked, of all things, symmetry: if we ding this law just because California has market power, Rhode Island could do the same thing and get away with it.

Lo, then: every state’s legislative jurisdiction extends from sea to shining sea. In a related decision, https://www.supremecourt.gov/opinions/22pdf/21-1168_kifl.pdf the Court held (in an opinion authored, like Pork Producers, by Justice Gorsuch) that state courts’ judicial, general jurisdiction extends to anyone who registers to do business in the state, meaning everyone. Such universal jurisdiction rulings are pristinely symmetrical in a formal sense. They are also a menace to a sensible constitutional order, and highly conducive to partisan strife.

Alas, the Supreme Court has produced a raft of decisions in this vein. Most fatefully, in Massachusetts v. EPA (2007) https://supreme.justia.com/cases/federal/us/549/497/ the Court granted the Commonwealth standing to compel EPA to make an “endangerment finding” with respect to greenhouse gases, which might prompt some sort of federal carbon regulation, which might reduce sea level rise by a millimeter a century hence. Supreme Court to Bostonians: if you like your city, you can keep it.

This is called “Mass v. EPA standing,” because nothing of the sort had been seen before. And while the majority opinion oozes concern over the poor, pitiful states and their right to make EPA do its duty, the rank partisan dimension of the ruling should have stared the Justices in the face. The dozen or so blue states that supported Massachusetts were fiercely opposed by a roughly equal number of red, energy-intensive states, which understood this wicked, one-sided game all too well. Blue states, bleeding citizens and their taxable income to more hospitable red states, have every incentive to raise their rivals’ costs. That is what the carbon war is about, and in a very real sense the Supreme Court unleashed it.

Can one think of symmetric rules for a more harmonious federalism? Sure. That, though, presupposes judges and Justices who are cognizant and mindful of partisan symmetries and dynamics. To that end, Constitutional Symmetry is a terrific exploration of this fraught terrain.

Michael S. Greve is Professor of Law at Antonin Scalia Law School, George Mason University. You can reach him by e-mail at mgreve@gmu.edu.