This chapter explores symmetry’s implications for the law of democracy. Symmetry has obvious relevance in this area, given the centrality of election-related disputes to maintaining courts’ political neutrality. At a minimum, symmetric interpretation should encourage the Supreme Court to ensure greater consistency in its emergency orders blocking legal changes before an election. In addition, symmetry may help justify the Court’s controversial decisions leaving both partisan gerrymanders and choices about overall districting procedures to the political process. In combination, if not in isolation, these rulings are symmetric because they avoid constitutionalizing one position or the other on politically charged questions about appropriate criteria for districting. Finally, symmetry should support closer scrutiny of voting rules and procedures with skewed partisan effects, provided that challengers can convincingly establish a meaningful impairment of political competition.

This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

The Supreme Court justices, as we have seen, have already shown some inclination toward constitutional symmetry. The Court’s overall output suggests an interest in visibly distributing wins and losses across partisan and ideological divides; its reasoning in some cases, and especially in some dissents, has invoked an imperative of symmetry more or less explicitly; and several narrow decisions reaching unexpected results suggest a self-conscious effort to maintain a public reputation for apolitical fidelity to law. This impulse, however, has remained inchoate and untheorized. As a result, the effort has appeared cynical and sporadic rather than principled and consistent. To fulfill its full potential as a stabilizing approach to constitutional law in our divided republic, judges and justices must embrace an ethic of symmetric interpretation more self-consciously and with greater consistency.

This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

This chapter addresses symmetry’s implications for expressive freedom and religious liberty. Symmetry supports maintaining First Amendment law’s current focus on neutrality, notwithstanding emerging critiques that this approach lacks a strong historical foundation and unduly limits governmental regulation of offensive or dangerous ideas. At the same time, symmetric interpretation counsels against expanding the emerging “First Amendment Lochnerism” that threatens to extend constitutional protections for free expression into areas of economic and workplace regulation. A preference for symmetry also supports protecting religious groups, when possible, through more general protections for freedom of expressive association rather than through religion-specific constitutional doctrines. Although religious liberty may once have been a symmetric principle, today religion-specific protections risk placing constitutional law on one side of a fraught political divide over religion’s place in public life.

This chapter addresses symmetry’s implications for separation of powers and federalism. It suggests that some major structural questions, such as the long-running debate over the president’s authority to fire or “remove” executive officers, hold an intensity out of step with their current political stakes. By contrast, other recent decisions, particularly those limiting agency authority over “major” policy questions and intensively reviewing the reasoned justification for certain policies, threaten to enable selective judicial disapproval of policies favored by progressives rather than conservatives. A preference for symmetry should support limiting or reconsidering these decisions. With respect to federalism, symmetry should likewise encourage the development of doctrines that grant parallel opportunities and protections to rival “red” and “blue” states dominated by either the Democratic or Republican Party.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

This chapter advances theoretical reasons to support symmetric interpretation. First, favoring symmetry accords with the Constitution’s character as a comparatively terse, “framework” document focused on establishing democratic procedures rather than definitive policies. Second, an ethic of symmetric interpretation accords with widely accepted features of judicial role-morality. Finally, symmetric interpretation accords with the framers’ own constitutional aspirations and interpretive methods. Multiple widely accepted theoretical considerations in constitutional law thus support preferring symmetric understandings when possible.

Originally established by “we the people,” as its preamble majestically states, the Constitution belongs to us all. But Americans increasingly treat it as the property of one political faction or the other. In keeping with their own preferences, conservatives interpret the Constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while at the same time limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown ever more divided and polarized, preventing either side from implementing its goals through federal legislation, both coalitions have dreamed of capturing the courts and implementing their vision instead through constitutional interpretation. A document that should be a source of unity and shared commitments has become a vehicle for extending political conflict.

The current constitutional partisanship is bad for courts because it undermines the apolitical commitment to law on which their authority depends. It is bad for the Constitution because it converts protections that should be points of unity into vectors of division. And it is bad for the polity because it risks undermining consensus support for the basic ground rules that a functioning political process requires. To interrupt this trend and forestall these bad outcomes, judges should embrace what this book calls constitutional symmetry.