Balkinization: Constitutional Symmetry: Symposium Response Part I

Constitutional Symmetry: Symposium Response Part I

Guest Blogger

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

Zachary S. Price

I am grateful to Jack Balkin for hosting this symposium on my new book Constitutional Symmetry: Judging in a Divided Republic, and I am even more grateful to the participants for their thoughtful contributions. Having a group I respect and admire so much engage with my work is a scholar’s dream, and I appreciate the time that participants took to prepare their reviews. In this post, after summarizing the book’s overall argument, I will offer brief responses to the first three reviewers. I’ll respond to the other four in a second post tomorrow.

The Book’s Argument

The basic argument in the book, as readers of earlier posts likely gathered, is that courts should favor, when possible, constitutional understandings that are symmetric, meaning understandings that offer valuable protections to interests on opposite sides of major partisan and ideological divides. The First Amendment principle of content-neutrality is a paradigmatic example: it equally protects all speakers, no matter what they are saying. By contrast, the individual right to bear arms is a good negative illustration: understanding the Second Amendment this way constitutionalizes one side of a fraught political and social divide, thus alienating roughly have the country from the constitutional jurisprudence that governs all of us.

Symmetric understandings are not always possible; the Court’s reading of the Second Amendment might be correct despite being asymmetric. Nor is symmetry the basis for a full-blown interpretive theory. I argue instead that it should function as a second-order preference in interpretation. Much as judges with different primary interpretive commitments might value judicial restraint or minimal reasoning, so too might they value symmetry when possible in particular areas of law. Unlike those other values, however, symmetry responds directly to the challenges of contemporary polarization and the temptation it creates for courts to craft wholly partisan constitutional understandings.

H. Jefferson Powell

To turn now to the reviews, Jeff Powell’s post offers several supportive observations: he suggests that the general need for balance in the law reinforces my proposal’s legitimacy, he points to the majority opinion on gun rights in United States v. Rahimi as a helpful example that post-dates the book, and he suggests that extending my proposal to presidential foreign affairs and defense powers should require a different approach. Powell’s own scholarship is a model for me and has influenced my own thinking in many ways, so I was delighted by the overall positivity of his response. His point about balance and the quote he offers from Justice Holmes are indeed helpful, and I agree with his assessment of Rahimi. As I just noted, recognizing an individual right to bear arms, as the Court did in District of Columbia v. Heller, is inevitably asymmetric: one major coalition supports this outcome and the other largely does not. I suggest for that reason in the book that the best courts may be able to do post-Heller in terms of symmetry is to “avoid hewing too closely to either partisan camp’s preferences in defining the right’s scope” (208). The majority’s approach in Rahimi does indeed seem to reflect this impulse, particularly as contrasted with the dissent, and Powell is quite right that it adds further support to my claim in the book “that [my] thesis develops what is already an inchoate legal practice.”

As for Powell’s point about presidential power, I quite agree as well. Although I have addressed these topics in other work, I held them aside in this project because, as Powell puts it, “disagreement over the president’s unilateral power to act in those spheres, and particularly to order the use of military force, does not track very closely the usual partisan and ideological divide.” Presidents’ expanding power over foreign affairs and use of force is a problem, and quite possibly a constitutional distortion, but the problem is not one of asymmetry: presidents from both parties have made broad use of these authorities to pursue their own divergent policy goals. Powell helpfully suggests that in these areas the concerns animating my symmetry thesis should encourage a judge to recognize that she “will serve the Constitution better if she searches for a rule that protects Congress’s role in those matters, and not simply the president’s.” I am grateful for this suggestion and will think about it more in connection with any future work on these topics.

William D. Araiza

Bill Araiza’s response recognizes “undeniable virtues” in the book’s argument but also points to some “subtle vices, or at least unresolved ambiguities, [that] lurk within it.” In particular, Araiza questions the book’s argument that symmetry best applies in the mid-range of analysis—at the level of doctrines implementing particular constitutional guarantees, as opposed to either general interpretive theories or case-specific outcomes—and he highlights some problems of application that this focus generates.

To start at the level of general theories, the book suggests that symmetry has some value in assessing overall interpretive approaches, as it can help discourage theories that amount to nothing more than “a set of political commitments translated into constitutional parlance” (104). I nevertheless argue that symmetry has greater value in applying theories than choosing them, in part because “politically idiosyncratic results across varied domains seem unlikely to stabilize understandings of civil liberty and constitutional restraint within any particular domain” (106). I give the example of Justice Gorsuch, whose originalist decisions favoring criminal defendants and Native American tribes seem to me to have done little to mollify critics of his equally originalist jurisprudence on administrative law and presidential power.

Araiza does not share this intuition about what sorts of consistency are stabilizing, and perhaps he is right; readers may judge for themselves. In any event, a better response, to which Araiza seems more receptive, may be that methodological disagreement is a plain fact of the contemporary interpretive landscape, one that symmetry can help judges manage. Indeed, without a preference for symmetry, the collective methodological inconsistency of a court’s judges or justices could easily end up yielding a politically one-sided set of outcomes, even if no single judge’s preferred theory would produce that result.

At the level of specific case results, Araiza suggests that distributing high-profile outcomes across partisan lines—“equal pieces of candy for each side,” as he evocatively puts it—might actually be what sustains the Supreme Court’s popular legitimacy. Although I acknowledge this possibility in the book (102-03), I note that deliberately extending a case-specific form of symmetry would run into a trap that Tara Grove has identified: to the extent the resulting decisions appear unprincipled and result-driven to legally sophisticated audiences, they would risk sacrificing the Court’s long-run legal legitimacy to obtain short-run “sociological” (i.e., popular) legitimacy. Though some may disagree, this dilemma strikes me as real in part because the Supreme Court’s long-run sociological legitimacy likely depends importantly on the legal legitimacy of its rulings. If the Court is just dispensing political goodies and not engaging in some coherent form of legal interpretation, then there would be no reason to give its nine life-tenured members, rather than some more democratically accountable body, the authority to resolve questions of constitutional meaning (and in fact opponents of judicial review argue against it along precisely these lines).

Araiza also raises questions about my use of Obergefell v. Hodges as an example of (as I put it) “one form of phony symmetry that has played a key role in the Court’s recent jurisprudence: minimal rulings that either avoid offering generalizable principles or else formulate such principles in so fact-dependent a manner as to leave all future options open” (108). In this context, I faulted Obergefell for grounding its recognition of a constitutional right to same-sex marriage in a curious melding of equal protection and substantive due process with no evident generalizability beyond the immediate issue at hand. I then suggested that the Court might have at least established a certain symmetry with respect to that exact point at issue—the question of marriage equality—by “interpret[ing] the Fourteenth Amendment from the outset as guaranteeing official neutrality on questions of marriage and sexuality, rather than as granting a right to same-sex marriage specifically.” This proposal was admittedly undeveloped and Araiza is right that it could raise further questions. What I meant to suggest was simply that some holding along these lines might have mitigated some of the controversy that initially greeted Obergefell. To be sure, this hypothetical holding might have been doctrinally unconventional, but so was the reasoning that the Court actually used, and my proposal would at least have put the law from the start in more or less the place where it seems to have ended up after Masterpiece Cakeshop v. Colorado Civil Rights Commission and 303 Creative LLC v. Elenis.

In any event, the book’s discussion of substantive due process in a later chapter offers a more complete response. “With respect to unenumerated rights,” I argue, “symmetry should encourage developing some method for identifying such rights that distributes them across major divides, rather than solely on one side” (204). This is a good example of the sort of “mid-range” analysis where I argue symmetry is most useful: although any given substantive due process claim is likely to be controversial, courts might defuse this political tension by employing a method of rights identification that does not inevitably favor one political outlook over another.

I argue that the “history and tradition” approach first articulated Washington v. Glucksberg and later embraced in Dobbs v. Jackson Women’s Health Organization “could potentially satisfy this criterion,” at least if applied in an evolving rather than backward-looking fashion (204). Of course, the Court employed this method to reject a right to physician-assisted suicide in Glucksberg and to overturn the right to abortion in Dobbs. Yet the Glucksberg approach probably could have supported the right to contraception for married couples that the Court recognized in 1965 in Griswold v. Connecticut, as well as the right to same-sex intimacy that it recognized in 2003 in Lawrence v. Texas. In addition, while this method might not have supported Obergefell’s result in 2015, it likely would have soon afterwards, given marriage equality’s remarkable trajectory of political success.

At the same time, the Glucksberg method also supports rights more valued by conservatives. For example, as I argue in the book, parental rights are likely sound under Glucksberg, and the same is likely true for some constitutional right of self-defense—a right without which the right to bear arms would be close to meaningless. Going forward, furthermore, the method gives all political sides the opportunity to shape the future jurisprudence of fundamental rights through “accumulated democratic choices” reflected in state and local laws (213).

Jeffrey A. Pojanowski

Jeff Pojanowski’s review echoes Araiza’s concerns about potential imprecision in defining the level of analysis at which symmetry applies. Focusing on my discussion of separation of powers and administrative law, Pojanowski accepts that legal principles that formally apply equally across administrations—for instance, the Court’s recent holding in Loper Bright Enterprises v. Raimondo that administrative agencies will no longer receive interpretive deference—may nonetheless be substantively asymmetric if they cut against one coalition or the other’s policy agenda to a greater degree. He also accepts the potential symmetry of my proposal to balance abandonment of deference (a step the Court took in Loper Bright after the book was completed) with a lighter-touch approach to arbitrariness review. Pojanowski himself has dubbed this package of impulses “neoclassical administrative law” and offered it a powerful defense on the merits; he accepts here that embracing it could constitute “a meaningfully symmetric compromise” given the current political division between those “more amenable to vigorous, nimble, and powerful federal governance” and those who favor a “small, decentralized federal government.”

Pojanowski raises more questions about my critique of the major questions doctrine. While I argue (in his paraphrase) that “a strong form of [this] doctrine itself has a political tilt similar to non-deference doctrine, namely a presumption against energetic, powerful federal agencies,” Pojanowski maintains that this critique only has “bite” if we view the doctrine as falling “outside of the ordinary science of legal interpretation.” If the doctrine instead simply reflects “a common-sense inference from the way we use language”—a theory Justice Barrett advanced in an important concurrence—then a critique of the doctrine’s asymmetry may end up being a point about first-order interpretive theory rather than an application of the sort of second-order value I advocate.

Like Araiza’s arguments, this is a challenging point. It highlights that even if one buys my argument for applying symmetry in the mid-range of doctrinal formulation, there may be an inevitable imprecision in deciding exactly when and how the principle applies. In my defense, the same is true of many other accepted concepts in constitutional interpretation, including not only second-order values like judicial restraint and minimalism, but also many doctrinal standards and tests. Indeed, in the most difficult cases, a degree of unbounded judgment likely bedevils the entire interpretive enterprise. Against this backdrop, it seems to me that an orientation towards symmetry could provide a useful discipline, even if its proper application is sometimes contestable. I would even suggest that framing future debates in terms of the proper level of generality at which symmetry applies would be an improvement over the status quo.

The question Pojanowski raises about the major questions doctrine may in fact illustrate this point. Barrett’s proposal, though imperfect, would at least be an improvement in terms of symmetry: her plain-language approach probably would not eliminate the doctrine’s deregulatory tilt, but it would help discipline it with stronger textualism, thereby limiting the risk of biased (and thus asymmetric) rulings that the Court’s current amorphous criteria for “majorness” all but invite.

Zachary Price is a professor at the University of California College of the Law, San Francisco. You can reach him at pricez@uclawsf.edu.

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