Symmetry’s Domain

Guest Blogger

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

Jeffrey A. Pojanowski

            It is a pleasure to be able to contribute to this symposium on Professor Zachary Price’s book Constitutional Symmetry: Judging in a Divided Republic, which deserves broad and deep and engagement. Everyone reading this symposium should read this book.

            First, I want to comment on the book’s general virtues before focusing on more discrete matters. There is a certain pleasure in reading a work whose style embodies its argument. To use very different examples, Nietzsche’s and Kant’s very different approaches to writing philosophy mirror what they think philosophy should be. We see something like that here. Price’s thesis is that, in polarized times, legal doctrines should reflect reasoned engagement, compromise, and fairness across ideological divides. His scholarship practices what it preaches. At a time where public discourse and scholarship veers towards the millenarian or apocalyptic, Price’s book is refreshingly measured. Although the book is animated by a crisis, reading it is like taking a good, long walk with a wise friend, not doom-scrolling. He engages with legal doctrine and the scholarly literature in a fair, thoughtful fashion that only strengthens the force of his broader argument.

            The book’s thesis is also ambitious and restrained. Price offers a grand theory for constitutional adjudication today. He argues that constitutional symmetry finds justification on three grounds: an updated and improved version Ely’s political process theory; a moral reading of the judicial role; and original methods of interpretation. (Price’s argument for symmetry at the level of doctrine recapitulates at the level of justification; there are many rooms in his theoretical house.) It also has wide-ranging applications: the First Amendment, separation of powers, Equal Protection, the Second Amendment, fundamental rights, and the law of democracy all get treatment here.

            At the same time, Price avoids the perils of cosmic constitutional theory. He is not here to tell everyone to whether to be an originalist or a living constitutionalist. Rather, he makes the more modest argument that whenever your preferred method of interpretation has play in the joints or requires implementing doctrines, you should resolve those indeterminacies or build those structures with an eye toward symmetry. The spread of his theory is total, but it is not totalizing. Thus, living constitutionalists should give the aims of symmetry a more decisive role when considering contemporary public values. When originalists find themselves in the “construction zone,” they should prioritize symmetry rather than, say, popular sovereignty or a presumption of liberty.

            Now, it’s easy for anyone who has read Peter Westen to scoff that equality’s cousin, symmetry, too, can be empty. I started thinking about that myself as I read Price’s treatment of administrative law, the doctrinal corner of his book I know best. Think of Chevron doctrine (RIP?). Under a regime of strong deference, it would be just as easy for conservative agencies to get their way as it would be for progressive agencies. Under a non-deferential regime, it would be just as hard for conservative and progressive agencies. The same holds for arbitrary-and-capricious review: a hard-look version of State Farm can be as much of an obstacle for Trump as it is for Biden. The only way to introduce asymmetry would be for partisan courts to toggle between deference regimes based on the party in power. So, at first glance, it appears that symmetry already exists in administrative law. Whether we pick deference or not, we’ve got symmetry. Yet administrative law remains very much a hot spot in our divided politics. Thus, either symmetry is not getting us what we want out of it or it is toothless in the face of judges who apply symmetrical rules in an asymmetrical fashion. If it is the latter, we have a pretty pernicious inside-the-system or outside-the-system problem.

            Price, however, deftly shows that this is too simple a way of thinking about symmetry. The choice to defer is itself not neutral, even though the regime treats agencies of both parties with formal equality. Deference doctrine, he contends, is more amenable to vigorous, nimble, and powerful federal governance, and therefore can have a partisan political valence. (Or at least it does to the extent we identify conservative politics with small, decentralized federal government. That characterization has been generally accurate in United States, but is not inevitable. There is a kind of conservativism that is happy to implement its policy preferences through a powerful federal government.) Thus, a regime of non-deference across-the-board leans conservative as a systematic manner, while a deferential regime tilts progressive. Here, Price invokes an article by then-Judge Stephen Breyer (and one by a far-less significant figure) to offer an example of symmetry at a higher level of doctrinal arrangement: no deference on questions of law, while greater deference in review of agency policy making. The progressive centralizers and the Country Party conservatives each get half a loaf. People can disagree about whether this balance is the best outcome, and there are arguments on its behalf that do not turn on symmetry. But it is a meaningfully symmetrical compromise and, in Price’s lights, that is something very much in its favor. It is also not the regime we have, at least with respect to arbitrary-and-capricious review, so the current contretemps in administrative of law are not disproof of concept.

            Symmetry does get trickier, I think, when we are dealing with interpretive questions as opposed to building doctrinal regimes. Price’s discussion of the Major Question Doctrine is illustrative. Under the MQD, the Court expects Congress to speak clearly when it gives agencies power to exercise powers of vast economic and social significance. In its older, weak form, the MQD simply displaced Chevron deference, rather than dictating the ultimate meaning of the statute. Under the newer, strong form of the doctrine, the court will adopt a presumption against such agency power when giving meaning to the statute itself. Price recognizes that even a strong form of the doctrine could itself be symmetrical. There can be elephants in mouseholes that help GOP’s elephants, such as ancillary language an aggressive interpreter could read as allowing serious deregulation or requiring cost-benefit analysis for agency decisionmaking. Yet Price contends that a strong from of the doctrine itself has a political tilt similar to non-deference doctrine, namely a presumption against delegation to energetic, powerful federal agencies. A strong form of the doctrine will lead to more outcomes like West Virginia v. EPA than MCI v. AT&T and not by coincidence, and is therefore suspect.

            I think the strength of this argument turns on whether you see “major questions” as a “doctrine” or an interpretive upshot. If the MDQ is a doctrine we create outside of the ordinary science of legal interpretation, Price’s argument can have ready bite. But what if you think, as Justice Barrett argued in her concurrence in Biden v. Nebraska, that it is a common-sense inference from the way we use language? And that common-sense inference can be neutral with respect to freedom to regulate. Consider Justice Barrett’s babysitter analogy. It would be strange for a babysitter to interpret the instruction to show the kids a good time as a license to fly them to Disney World. In the same fashion, it is not plausible to read “make sure the kids are in bed at ten” as restraining the sitter from sending a deathly ill child off in an ambulance at 10:05. We don’t expect Congress to hide the ball on the big stuff, whether that stuff empowers of disempowers agencies.

            Price objects that Justice Barrett’s appeal to common-sense textualism nevertheless packs in implicit constitutional value judgments. It is possible that Congress wants agencies to have flexibility to fill in gaps, either because it likes energetic agencies or it wants to avoid accountability. A presumption the other way, he contends, is a legal fiction grounded in constitutional values of congressional responsibility for policymaking. This, Price suggests, is not symmetrical.

Whether Price is right or not on this particular critique, this kind of argument raises questions about how far down the press for symmetry should go in constructing theories of interpretation. You can imagine symmetry-based arguments that courts should avoid using a host of substantive canons. We would have to ask if the rule of lenity, the presumption against extraterritoriality, inferences in favor of veterans or Native Americans, and the like, are symmetrical. If not, we’d have to ask whether to jettison them or, in an echo of Price’s move on deference regimes, adopt a diversified portfolio of substantive canons that offers something to both sides. It gets even trickier when we consider Price’s argument that, as with Justice Barrett’s concurrence, inferences from semantic and pragmatic context can be the product of a kind of normative astigmatism that skews interpretation in non-symmetrical ways. If interpretive normativity cuts down that deep, we have to ask whether one should build symmetry into the DNA of interpretive methods. If so, that would undermine Price’s argument that symmetry comes in only when you have interpretive uncertainty; considerations of symmetry might inform what counts as interpretation or uncertainty in the first place. Symmetry’s domain might be greater than we initially thought. If it is not, we need to think more about how to draw the line between fallback approaches like Price’s and the first-order constitutional interpretation to which it is supposed to be a helpmate.

            My worry is not fatal to the project, of course. If anything, it shows how Price’s theory can generate new questions and help us think through old ones in fresh ways. I am not convinced by every particular argument in the book and I am not sure about how the laudable goal of symmetry should mesh with approaches to interpretation in general. I have, however, benefited immensely from reading it, enjoyed reading it, and am continuing to think through its incisive arguments and their wide-ranging implications. That’s exactly what a great work of legal scholarship should do.

Jeffrey A. Pojanowski (pojanowski@nd.edu) is the Biolchini Family Professor of Law at Notre Dame Law School.