Constitutional Symmetry: Symposium Response Part II

Guest Blogger

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

Zachary S. Price

This is my second post responding to participants in the symposium on my new book Constitutional Symmetry:  Judging in a Divided Republic.  I’ll respond here to the remaining four reviewers and then offer some closing thoughts.

Michael Greve

Mike Greve, writing with his trademark verve and wit, raises questions about my focus on “partisan and ideological” symmetry.  He suggests that partisan symmetry should generally support what he calls “decision rules,” meaning formal rules like the President’s power to fire executive officers or a congressional committee’s authority to enforce a subpoena in court.  Such rules admit ready application without regard to the partisan affiliation of the political actor in question.  Greve worries that extending the theory to “[i]ssue-oriented symmetries” requires “distribution rules” that are less satisfactory. 

Greve’s distinction is helpful and I agree that a preference for symmetry works best when it cashes out in readily administrable “decision rules” of the sort Greve identifies.  The trouble is that even such rules will not really be symmetric in the sense of mitigating partisan conflicts if they themselves have one-sided distributive consequences. 

The removal example that Greve highlights is a case in point.  I suggest in the book that the ideological divide over the President’s power to fire senior policy-making officers has outlived its political underpinnings.  Although at-will removal authority might once have favored the deregulatory agenda of Republican presidents, today tenure protections for top-level offices seem at least as likely to obstruct pro-regulatory presidents as deregulatory ones.  Had Seila Law LLC v. Consumer Financial Protection Bureau gone the other way, for example, President Biden could have ended up saddled with a Trump appointee regulating consumer financial products during his administration. 

By contrast, extending a constitutional removal power deep into the civil service, as the Trump administration may now be attempting to do, would be quite asymmetric.  Although both sides could do it, only one would want to in most contexts.  That is so because, as I put it in the book, this understanding of removal power “would enable deregulatory administrations to hollow out the administrative capacity required for expertise-based governance by those who favor it” (151).  I happen to think that claiming such constitutional authority would also be wrong on the merits (for reasons I have addressed in other work), but the resulting asymmetry should give pause to those who find the question closer. 

Greve also raises questions about my efforts to apply symmetry to equal protection doctrine and administrative law.  In such areas, Greve suggests, the symmetric understandings I identify would amount in practice to something like “interest group compromises that seem tolerable at the time.”  That may be right, but it seems to me that such compromises may be valuable insofar as they are legally credible and take political pressure off constitutional law.  At least with respect to administrative law, it also seems to me that the Constitution itself is less clear than Greve suggests.  He writes that the Constitution carries a “robust presumption in favor of private orderings” and that it is thus “deeply, deliberately, incontrovertibly asymmetric” on questions of administration.  I am not so sure, but that would simply mean in practice that my primary interpretive commitments would allow for greater symmetry in this area than would Greve’s. 

On a more positive note, Greve urges greater attention to symmetry in federalism doctrine, though he emphasizes “the importance of not just choosing a symmetric rule, but the right symmetric rules.”  I quite agree and commend Greve’s own work to all readers, especially his article on Bloc Party Federalism, which helped me better understand the political stakes of contemporary federalism.  In the book, I defend the anti-commandeering doctrine as a paradigmatic example of symmetry and I fault the Supreme Court’s recent decision in National Pork Producers Council v. Ross for “fail[ing] to provide any clear guidance at all [on inter-state federalism questions], let alone symmetric rules providing comparable protections and opportunities to states in different ideological camps” (176).  I do not otherwise take firm positions on what federalism principles would be either legally sound or symmetric, but I hope very much that judges and scholars will attend to both considerations in addressing emerging issues. 

Sanford Levinson 

Sandy Levinson focuses on questions of audience.  He doubts how important the Supreme Court is, whether scholars have any influence on courts, and whether my proposal in particular stands any chance of influencing judges and justices. 

On the first point, I quite agree:  the Supreme Court is only one part of our constitutional system, and political choices are much more important to the country’s future.  I also think practices developed outside of courts, including some I have written about, are often key determinants of constitutional meaning, both in court and outside of it. 

This book, though, is about adjudication and I do not think I am “almost grotesquely overemphasiz[ing] the importance of the Supreme Court” by pointing out that courts play an important systemic role in settling constitutional disputes for the polity and that we should worry about how the system will function if they lose that capacity.  Many people who are no fans of the current Supreme Court are in fact intensely worried about that question right now.  I also did not intend to suggest that embracing symmetry will fix the country’s political culture or solve polarization or address any number of other pressing and frankly more important problems.  I do think, however, that courts play a central role not only in resolving concrete cases but also in modeling constitutional reasoning and helping sustain constitutional commitments.  The book urges judges to orient their performance of those functions toward mitigating rather than exacerbating political conflicts over constitutional law.  Finally, the book is about constitutional interpretation, meaning that it is about how to interpret the constitution we have in a system that accepts the validity of judicial review.  Levinson has devoted much of his extraordinary scholarship to calls for constitutional reform, and he may be right that certain changes would be beneficial, but this book is not engaged in that debate. 

Regarding Levinson’s point about academic influence in general, I agree that judges are unlikely to spend much time reading legal scholarship (how would they have the time?), and I certainly do not expect many active judges, let alone justices, to read this book.  Nevertheless, I think it is quite inaccurate to suggest that scholarly debates have no influence on the judiciary.  Judges and justices write lengthy opinions because they hope those opinions will persuade other judges, lawyers, and law students whose judgment they respect.  Given the political and jurisprudential mismatch between the majority of the academy and the majority of the Supreme Court (if not the judiciary as a whole), most justices may not view most academics as their most important audience; as Levinson notes, the Harvard Law Review Foreword is probably not as directly influential as it once was.  Even so, all the justices are attentive to some scholarship; indeed, they cite it with some regularity (and one of them was even the dean of the Harvard Law School). 

Scholarly debates, furthermore, may influence courts in indirect ways as ideas developed in the academy bubble up to courts through their influence on litigants’ arguments, clerks’ thinking, and opinion-leaders’ critiques.  Nor are these debates entirely siloed:  just consider the ideological diversity of this symposium’s participants.  For all these reasons, I do not think that academic constitutional scholarship is irrelevant to the judicial practice of constitutional interpretation. 

Of course, to turn to Levinson’s last point, it could be that while some scholarship is relevant, my book is not.  Perhaps no one will read it (though I am grateful that at least these seven reviewers did).  Alternatively, to the extent it does garner attention, it might fail to persuade judges and decisionmakers and thus carry no real-world influence. 

Though I am biased, I do not find it as implausible as Levinson seems to that judges or even justices would find favoring symmetry attractive.  My proposal, it is true, “cuts against the grain of the very partisanship that it aims to redress” (3).  The book, though, contends that favoring symmetry is already an inchoate feature of judicial practice, reflected not only in lawyers’ arguments and judges’ questions but also in recent opinions.  It also suggests that judicial role-morality may exert a strong pull even on judges who were previously quite partisan lawyers.  As I put it in the introduction, “judges do not wish to be seen as result-driven partisans.  Their institutional position instead demands impartial fidelity to the law, and embracing symmetric understandings is one way in which they demonstrate such commitment” (3).  The book aims to encourage this impulse and enable judges to follow it in a more principled and consistent fashion. 

But even if no judge embraces the book’s ideas, courts are hardly the only valuable audience.  The book aims to provide a vocabulary of critique that is rooted neither in any one ideal interpretive theory nor in any one set of politically desired results.  To the extent commentators find this vocabulary useful, the book could help orient the discourse surrounding courts in productive directions, even if it does not influence courts themselves—and even if it fails on that front, it can join the ranks of imagined “constitutions in exile” that persist in academic amber, waiting to be extracted and returned to the throne if someone someday so desires. 

Stephanie Barclay 

Stephanie Barclay offers the opposite worry from Levinson:  she suggests that while courts may embrace symmetry, media coverage will not give them credit.  She highlights in particular the “praying coach” case, Kennedy v. Bremerton, arguing that “the Supreme Court’s measured approach [in that case] was ultimately overshadowed by mischaracterizations of the case in both the dissenting opinion and subsequent media coverage.” 

This strikes me as a genuine problem:  a great deal of commentary is indeed oriented towards shaping public perceptions of the Court to serve partisan interests.  The book implicitly assumes that the truth about court decisions—whether they are in reality symmetric or not—is what matters to their public legitimacy, but it could be that biased commentary matters more.  As Jonathan Swift wrote, “[f]alsehood flies, and truth comes limping after it.” 

Nevertheless, it seems to me that courts have tools of their own to counteract these problems—tools that the book highlights and encourages.  For one thing, courts can highlight symmetric implications of their holdings in hypothetical cases with opposite political valence.  For another, they may sometimes choose one rationale over another, or even one legal theory over another (at least if the parties raised them). 

Kennedy was a missed opportunity on both those fronts.  To take the latter point first, the Court in Kennedy melded free exercise and free expression rationales in holding that a public school could not discipline a coach for private prayers after games.  I argue in the book that, given the unfortunate contemporary divisions over religion, courts should favor expressive freedom rationales over religion-specific ones even in religious-liberty cases.  Kennedy is a case in point:  framing the decision as a free expression case might have reduced its political charge precisely because this theory may benefit secular as well as religious Americans. 

The Court could also have gone further in highlighting its holding’s implications.  Barclay notes that the majority opinion did note its interfaith benefits by emphasizing that ruling for the school district would have enabled a school to “fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”  At oral argument, however, justices pressed the school’s lawyer with examples involving secular causes, such as waving a Ukrainian flag on the field or kneeling during the national anthem to protest police violence.  Although the Court’s opinion said nothing about those hypotheticals, its holding probably would protect such expressive actions in some circumstances.  So why not make that consequence explicit? 

These are not perfect solutions to the problem Barclay identifies; the media environment poses challenges that go well beyond public perceptions of court decisions.  Kennedy is also an unusual case insofar as the majority and dissent offered starkly different accounts of the relevant facts.  Even in that case, however, favoring symmetry in ways the book recommends could at least have made it harder to characterize the decision as a one-sided blow for traditional religion against secularism. 

Osagie K. Obasogie 

Last but not least, Osagie Obasogie accepts the value of “shift[ing] the focus of judicial review away from taking sides and towards finding common ground,” but worries that pursuing symmetry is at odds with the very notion of fundamental rights and that it could shortchange vulnerable populations more generally.  These concerns are fair.  On the specific issue of fundamental rights, I characterize the Glucksberg method of rights identification as symmetric, but some might fault this approach for giving too much weight to democratic choices and not enough to counter-majoritarian protections.  There may also be groups whom the political process uniformly disfavors, making a preference for symmetry inappropriate; I set aside criminal procedure questions in the book for that reason (see 113-14 & n.1). 

That said, however, my framing of symmetry as a second-order preference should help mitigate Obasogie’s concern.  Because I advocate symmetry only as an ethic rather than a hard and fast rule, interpreters never need to compromise their clearest primary commitments to favor symmetry.  They can always avoid positions that are, as Obasogie puts it, “just wrong and incompatible with our legal commitments.” 

On the whole, furthermore, I do not think that symmetry and minoritarian protection are necessarily at odds.  Quite the opposite, they may often be mutual reinforcing.  While current political polarization generates troubling repressive tendencies, constitutional polarization may tempt courts to counteract those tendencies only selectively.  By contrast, a preference for symmetry encourages what the book calls “mutual rather than selective disarmament” (45)—and minoritarian protections with this character might in fact prove more robust and durable precisely because both sides have a stake in maintaining them. 

Free expression again offers a case in point:  broad protection for free expression has remained a striking point of consensus on the Supreme Court, despite intense divisions in other areas, and the doctrine’s symmetry is likely one reason why.  Moreover, while it is true that such broad protection sometimes protects hurtful or offensive expression, it also blocks government limits on advocacy in defense of unpopular groups.  The book contends that such dynamics could take hold in other areas too.  With respect to fundamental rights, as noted earlier, I suggest that the Glucksberg method (or some version of it) could sustain a varied panoply of rights, but if one finds Glucksberg too confining, there might be other, more protective approaches that would maintain a degree of symmetry too. 

*     *     * 

I have gone on far too long for a blog post (or even two!), but I wanted to repay the reviewers’ thoughtful engagement in kind. 

Let me conclude with a brief word about the contemporary moment.  To a degree that is unusual even in our era of increasing presidential unilateralism, the new Trump administration is taking steps as I write to challenge existing constitutional doctrines in multiple areas.  Though the rapidity and extent of this effort may be new, courts hearing the resulting cases will essentially confront the same dilemma that motivates the book:  they will need to credibly resolve disputes for a polity that is sharply divided not only over policy but also over legal interpretation. 

It seems to me that courts confronting this challenge will need to avoid an undue tilt toward any one partisan agenda while also preserving the legal credibility of their rulings.  My argument for symmetry aims to provide them with principled methods for accomplishing those goals.  Whether the proposal itself is sound or compelling is ultimately for others to decide, and I am grateful to the reviewers here for sharing their reactions. 

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