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
20th 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.