The Subtle Vices of the Virtue of Symmetry

Guest Blogger

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

William D. Araiza

Zachary Price has written a big and important book. It’s big in both the sweep of its coverage and its aspirations. Addressing a wide variety of constitutional and public law subject-areas, it aspires to provide a new criterion for judicial decision-making that he argues will do nothing less than mitigate the legitimacy crisis facing the Supreme Court. (To his great credit, he does not overclaim by arguing that his solution will completely solve that crisis. His modesty in that and other regards is one of the book’s many virtues.) And while his analysis is sophisticated, careful, and thorough, his main thesis is disarmingly straightforward: the Supreme Court, he argues, should consider and, to the extent possible, accord at least some weight to whether its analysis of a given issue will equally—“symmetrically”—impact both sides of today’s partisan divides. This is an important idea that deserves to be considered. Nevertheless, despite these undeniable virtues, some subtle vices, or at least unresolved ambiguities, lurk within it.

First, the level at which Professor Price casts his call for symmetrical constitutional interpretation remains unclear. This ambiguity remains despite his recognition of the issue, and, indeed, despite his explicit statement that “Symmetric interpretation … most appropriately applies in the mid-range, at the level of general understandings and doctrines that implement constitutional guarantees across a defined set of cases.” (102) He uses the Free Speech Clause’s content-neutrality rule as an exemplar of such a mid-range understanding—one cast at a more general level than particular results giving some speakers wins and others losses, but not as general as the selection of a particular interpretive theory, such as originalism, to decide such cases.

But questions remain. First, the examples Professor Price himself offers raise questions about this mid-range understanding of his desired symmetry. Thus, in discussing Obergefell v. Hodges, he suggests that a symmetrical ruling in that case would have “guarantee[d] official neutrality on questions of marriage and sexuality … stripp[ing] the state simultaneously of authority to forbid same-sex marriage and to compel participation in it.” (109) But that would be quite a broad rule, transcending the substantive due process doctrine on which Obergefell formally rested, to incorporate rights best thought of as resting instead on free speech, free religious exercise, and associational liberty. To be sure, such a rule could be described as symmetrical—but still, not one grounded “at the level of … doctrines that implement constitutional guarantees.” Moreover, such a rule—in this case, enshrining, among other things, seemingly broad religious liberty-based rights to exemptions from public accommodations laws—would likely cause asymmetries of its own, to the extent Professor Price argues (as he does) that free religious exercise claims are themselves likely asymmetric. (132-135) With analysis like this, one fears that his level of generality analysis would quickly collapse into a set of contradictory impulses, depending on how one viewed the particular claim at issue.

More generally, it remains unclear why Professor Price favors that mid-range level for his call for symmetry, rather than more specific or more general levels. Critiquing the more specific level, he seems to believe that simply handing out specific wins and losses equally to both sides, like an adult on Halloween giving a pair of trick-or-treaters exactly the same number of candies, will impair the Court’s long-run legitimacy. Perhaps. But that conclusion turns on the particular audience that is the subject of his legitimacy concern. Average citizens don’t read Supreme Court opinions; even less do they scour them for evidence of principled (or symmetric) legal analysis. If Professor Price’s concern about the Court’s declining legitimacy is aimed at the mass of American citizens, it’s not clear why equal pieces of candy for each side, writ large, is a strategy doomed to failure. Careful readers and critics of the Court’s handiwork wouldn’t like it. But is that who he is concerned about?

At the other extreme, Professor Price suggests that the justices’ selection of overarching interpretive theories is also not the best level at which his recommended symmetry be implemented. He argues—oddly to me—that, for example, what he describes as Justice Gorsuch’s originalism “seem[s] unlikely to stabilize [constitutional] understandings” (106) even if, as he explains, that justice’s version of originalism provides victories to both sides. To be sure, he’s certainly correct that the justices on the current Court are simply unable to unite around a given interpretive theory. That’s a perfectly defensible reason to cast his gaze downward, toward his preferred “mid-range.”  But why such a theory is incapable, as a general matter, of presenting an appropriately symmetrical constitutional jurisprudence remains under-explained, especially in light of recent progressive interest in the potential of at least some applications of originalism.

This gap in the analysis becomes more than a pesky nit when one considers certain interpretive approaches that seem ready-made for Professor Price’s symmetry prescription. In particular, political process theory, or democratic reinforcement more generally, stands as a seemingly symmetrical approach to constitutional decision-making. Indeed, its Ur-text, Footnote 4 of United States v. Carolene Products, has been understood as an attempt to find a role for the Court while staying neutral on broad policy debates—essentially what symmetry entails. Concededly, as Professor Price himself notes in his last chapter on voting and the law of democracy, focusing on democratic reinforcement requires a theory of democracy—something that, as scholars have pointed out, the Court has never provided, even while hurling down thunderbolts such as Reynolds v. Sims. Nevertheless, if one is looking for a jurisprudential approach that promises symmetry by promising an equal playing field for all political combatants, then the Court could do worse than simply delivering on whatever (reasonably-justified) version of that equal field it can. One wonders if his counsel of looking for symmetry at more specific, “mid-range” levels is simply too modest.

Indeed, Professor Price embraces the underlying wisdom of a political process approach to constitutional law, but purports to “updat[e]” it (63), by characterizing “the central political-process challenge in the United States today” not as Footnote 4-style political exclusion, but instead as “partisanship itself.” (Id.) This is a bold and big claim, and Professor Price can be forgiven for not fully making that case in his book. But if one is ultimately going to embrace his call for symmetry as a modern-day version of the mid-late 20^th century Court’s political process reinforcement, additional work must be done.

But even on its own terms, Professor Price’s mid-range symmetry raises difficult questions. Consider again Obergefell. Professor Price critiques Obergefell as “reach[ing] a controversial and socially transformative result on grounds with no evident application beyond the immediate case at hand.” (109) I believe he is being too uncharitable to his former boss. Justice Kennedy began his opinion in Obergefell by telling the stories of the plaintiffs in the case. To be sure, one goal of telling those stories was likely to paint those persons as, to use my colleague Cynthia Godsoe’s words, “perfect plaintiffs” whose stories would resonate with lay readers of the opinion. But those stories establish an important larger principle: that the plaintiffs in that case (like, in Justice Kennedy’s implied telling, all same-sex couples) sought to wed for the same reasons opposite-sex couples did. In that sense, one can find a broader grounding for Obergefell, one located, tellingly enough, in the space where he famously explained that the fundamental right to state recognition of a special type of intimate human relationship and concern about invidious discrimination converged. Why wouldn’t that be a principle be capable of symmetrical application?

Of course, that question probably answers itself: “because, leaving aside far-fetched hypotheticals (California banning marriages that emphasize traditional gender roles?), there simply is no conservative analog to same-sex marriage that Obergefell can equally promote.” That answer raises what might be the fundamental problem with Professor Price’s argument. It may be that, at the end of the day, the only candidates for his mid-range symmetry are those doctrinal areas that feature potential rules that could benefit both sides. To his great credit, Professor Price recognizes this possibility, when he explains, especially in the context of gun and unenumerated substantive due process rights (and maybe religious exercise rights as well), that symmetry is simply not possible, or at least more difficult, given the deep political valence of the underlying right.

It's not clear that Professor Price provides a satisfactory explanation of what a court—or the Court—should do about those situations. At times, he seems to suggest that the Court should simply decide those cases on other grounds. For example, when discussing religious exercise rights, he calls for deciding those claims as more symmetry-amenable claims to free association. Again, this argument is puzzling. Litigants raise the arguments they want to raise—indeed, quite possibly for larger political reasons. Today, for example, not only individual plaintiffs but the ideological litigation organizations that often represent them presumably are aggressive about pressing free exercise rights, given their sense that a majority of the Court is sympathetic to them.

What is a Court to do when those cases reach the Court? Simply ignore the legal theory being pressed on them? Perhaps that might, over time, persuade those forces to shift their emphasis to, say, the First Amendment associational right, but surely that would come at the price of the Court seeming to ignore, or even disparage, the right that, inconveniently or even embarrassingly, exists in the constitutional text. Even if the Supreme Court could force that shift by exercising the passive virtue of simply denying cert. in these cases, lower courts would have to decide them. Such cert. denials would presumably lead to lower court jurisprudence asymmetrically favoring or disfavoring such claims, or simply to conflicting lower court decisions that would leave everyone crying out for Supreme Court intervention. But leave aside these logistics—if logistics they are. More generally, calling for the Court to repackage litigants’ claims in different doctrinal boxes is a formula for willful and ultimately confused constitutional decision-making, especially if it was done simply in order to ensure that both sides get a candy from the resulting doctrine.

In sum, then, while Professor Price’s work is deeply valuable, it cannot be the last word, not just on how the Court should rule on or analyze cases (he concedes that much), but also on the viability of symmetry as a general matter. Despite that conclusion, the fact remains that Professor Price has done a great service in raising the symmetry idea as one that might reasonably motivate a Court seeking to make a good-faith attempt to remedy the legitimacy deficit it has, sadly, largely created for itself.

William D. Araiza is the Stanley A. August Professor of Law at Brooklyn Law School. You can reach him by e-mail at bill.araiza@brooklaw.edu.