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.