The New Constitutional Doctrine That Would Depolarize the Supreme Court

Chief Justice Roberts' ad hoc rulings can't really cure the perception of partisanship on the bench

(Jude Schroder, Shutterstock)

The greatest challenge for contemporary constitutional law, as for contemporary American politics, is polarization. Just as the citizenry has divided into two divergent political camps, lawyers and judges have embraced two divergent constitutional visions.

Conservatives interpret the constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion—results that conveniently accord with their policy preferences. For their part, 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—again, results that are congenial to their political outlook.

Following President Trump’s three appointments to the Court, some worry that an emboldened Republican-appointed majority is well-positioned to embody the conservative vision in case law.  Indeed, failing to do so could demoralize those who spent political capital to place the current majority on the Court. Yet, at the same time, enacting the conservative vision wholesale could prove both calamitous and self-defeating: It would invite progressives’ ire and risk destroying the Court’s credibility with the general public as a principled and law-bound body.

Accordingly, to keep its authority intact and preserve its important institutional role, the Court must navigate between these shoals. We all have a stake in whether it does so successfully. It is not hard to imagine a contested future election spinning out of control if the court system cannot resolve disputes in a broadly accepted manner.

The Good and Bad of the Last Supreme Court Term

From this perspective, the Supreme Court did reasonably well in its just-completed October 2022 term. Far from engaging in reflexive partisanship, the Court produced a mix of important wins and losses for each major political coalition. It also divided along unconventional axes in some cases, and, though some opinions weren’t persuasive, it generally produced credible legal explanations for its rulings. It showed, as Ilya Somin argued in his recent post, that it is still a court, not a purely political body, undermining the case for major institutional reform among all but the most doctrinaire progressives.

Nevertheless, the Court could do better by embracing an interpretive approach that I have called “constitutional symmetry” in past work and a forthcoming book: Instead of dispensing wins and losses across partisan divides in a seemingly ad hoc fashion, it could favor understandings that simultaneously confer important, if prospective, benefits on opposite sides of major societal fault lines.

In what follows, I will offer a quick overview of some key cases from the Court’s recent term, highlighting some emerging patterns in the Court’s decision-making. I will then elaborate on the principle of constitutional symmetry and assess how well the Court performed this year by that metric.

Ad Hoc Non-Partisanship

The Court’s latest term included a high quotient of politically salient cases, and the justices conformed to political expectations in many of them. Splitting along predictable partisan lines, it held, for example, that race-conscious university admissions are unconstitutional in Students for Fair Admissions, Inc v. President and Fellows of Harvard College, that the Biden Administration’s signature student debt-relief program was unlawful in Biden v. Nebraska, that prosecutors may employ codefendants’ confessions in joint trials in Samia v. United States, and that the First Amendment shields a conservative Christian web designer from compelled production of custom websites for same-sex weddings in 303 Creative LLC v. Elenis.

Yet in other cases the Court failed to deliver the desired results for conservative litigants.  It rejected a constitutional challenge to the Indian Child Welfare Act, a federal statute that in some circumstances requires states to prefer placing Native American children with Native families in adoption proceedings. It also rejected—by a vote of eight to one, no less—challenges to an immigration enforcement policy that Texas and other states complained was unlawfully lax.

Most consequentially of all, it rejected efforts to narrow or invalidate a key provision of the Voting Rights Act, and it further rejected the so-called “independent state legislature” theory that would have granted state legislatures exclusive authority, without review by state courts, to draw legislative districts and establish certain election rules absent federal intervention. Ruling the other way in those two cases would have materially advanced the GOP’s prospects for controlling Congress in the future, but the Court nonetheless declined to do so.

In other consequential cases, the Court fractured in unpredictable ways. In one case, the Court issued a surprising decision on state jurisdiction over out-of-state corporations that may upend governing understandings, but it did so with a strange-bedfellows majority composed of Justices Gorsuch, Thomas, Alito, Sotomayor, and Jackson. In another important case about state laws regulating out-of-state production of goods sold within the state, the Court failed to agree on any unified rationale and divided along equally unconventional lines in upholding the California law at issue.

Overall, this pattern of results is reassuring. It shows that although the Court is now strongly aligned with the conservative constitutional vision, that doesn’t mean that the justices will simply enact conservative preferences in lockstep with partisan interests regardless of the legal arguments.

What is more, the three Trump-appointed justices revealed some important differences in outlook that could prove consequential going forward. Justice Kavanaugh joined Chief Justice Roberts in standing pragmatically by past precedent in the Voting Rights Act and independent-state-legislature suits. Justice Gorsuch has maintained a philosophical commitment to originalism and textualism that leads him to favor politically progressive results in some areas, like the federal Indian law and criminal procedure. And Justice Barrett seemed to embrace a more traditional judicial conservatism: both her majority opinion upholding the Indian Child Welfare Act and her dissent in the corporate-jurisdiction case emphasized caution, restraint, and careful attention to governing legal authorities.

Despite predictable progressive dissatisfaction with many of the Court’s decisions, these emerging patterns in the Court’s decisions should calm anxieties that the Court will now function as nothing more than a judicial arm of the GOP.  The justices, in different ways, have signaled that they are willing to follow the law even if the results are at odds with their own political preferences. And in doing so they have likely helped preserve political support in the broader public for the Court’s important institutional function.

Constitutional Symmetry: Principled Bipartisanship

A remaining problem, however, is that notwithstanding the heterodoxy of some of its results, the Court has often conveyed the impression that it is self-consciously dispensing some progressive wins in an ad hoc fashion so as to blunt criticism of its conservative rulings. Chief Justice Roberts in particular has seemed to swing back and forth in some cases, and some have suspected his actions reflect his publicly expressed concerns about maintaining the Court’s legitimacy.

This tendency was admittedly much more pronounced in past terms than in this one. Just before the 2020 election, for example, Chief Justice Roberts joined the more liberal justices to block the Trump administration’s rescission of the “DACA” immigration-relief program for immigrants who arrived in the United States unlawfully as children. Because the opinion was narrow and employed some puzzling reasoning, it fueled speculation that the Court was tying itself in knots to limit pressure for court reform following a likely Democratic victory in the upcoming election.

Although this term’s examples are less flagrant, some outcomes might still raise a cynic’s eyebrow. In the university-admissions case, for example, the Court issued a sweeping ruling that rejected affirmative action across the board (even though narrower options to offer relief to the Asian American plaintiffs were available that did not involve settling broader questions about race-conscious admissions policies). In doing so, the Court effectively overturned past decisions allowing universities to seek student-body diversity. But then in the voting-rights case, the majority adhered rigorously to past precedent and rejected the challengers’ arguments for a course-correction.  The two cases, of course, are distinguishable: the one involved constitutional principles that the Court has a special charge to safeguard whereas the other involved an important statute that the Court had previously upheld. But one might wonder whether the Court was picking its battles by ruling in opposite ways in two hot-button, race-related disputes.

In the future, the Court could avoid this trap by embracing constitutional symmetry. Rather than dispensing wins and losses in an ad hoc fashion, the Court, when possible, should construct doctrine in particular areas so that, over time, it protects interests that straddle key partisan and ideological divides. In other words, it should favor constitutional understandings that predictably shield elements of both major coalitions from oppressive government action, and, by the same token, it should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Doing so will necessarily mean anchoring decisions in generalizable principles that give assurances about future cases, rather than seeking to resolve cases as narrowly as possible while getting to desired results—the approach Chief Justice Roberts seemed to take in the DACA case.

By way of illustration, the Court’s longstanding focus on content- and viewpoint-neutrality in speech regulation provides a paradigmatic example of such symmetry: by forbidding the government from disadvantaging speakers based on what they are saying, the Court’s understanding of the First Amendment equally protects conservatives and liberals (and everyone in between) and thereby gives both sides a stake in preserving a key civil liberty. Another good example is the so-called anti-commandeering doctrine that prevents the federal government from directing states to enact or enforce particular laws. This doctrine gives effect to constitutional federalism principles in a manner that equally protects “red” Republican-controlled states from administering an expanded Medicaid program or enforcing federal gun laws and “blue” Democratic-controlled states from assisting in federal immigration enforcement.

Model Ruling

This term, the Court in fact drew on this important feature of First Amendment law in 303 Creative. In ruling that the state could not apply its prohibition on sexual-orientation discrimination to compel production of same-sex wedding websites by a conservative Christian opposed to gay marriage, the majority emphasized that the principle supporting this outcome—a notion that the First Amendment forbids compelled provision of expressive services—will equally protect progressives in the future.

In fact, the Court said so explicitly.  Had the case come out differently, Justice Gorsuch’s majority opinion explained (quoting a dissent from the lower court), “The government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.” At the same time, the ready availability of comparable, alternative website providers for same-sex couples distinguished Gorsuch’s rationale in this case from similar objections to banning private discrimination in the 1964 Civil Rights Act. Absent that ban, Jim Crow’s brutal system of racial segregation would have entirely deprived Blacks of certain private services.

Although the outcome in 303 Creative remained controversial, highlighting the decision’s symmetric implications in this way should soften its sting in the long run. What is more, it does so in a way that appears law-bound and principled rather than result-driven and ad hoc: it shows that the Court is willing to stick with its holding in future cases with opposite political valence.  Constructing doctrine across the board in this manner could help defuse political conflicts over constitutional law without fueling suspicions that the Court is manipulating public opinion to get away with conservative results where it most wants them.

Scope and Limitations of Constitutional Symmetry

Favoring symmetry in this way will not always be possible. A preference for symmetry can properly operate only at the level of doctrinal construction; it cannot provide a reason to ignore clear constitutional text or avoid results compelled by primary legal considerations. The Constitution is not neutral between equal rights and racist oppression, nor between democratic self-government and autocracy, so constitutional interpretation could not properly favor symmetry with respect to those divisions. Likewise, for better or worse, the Constitution unambiguously prescribes two Senators for every state, even if that rule carries implications for representation of viewpoints in the U.S. Senate. Moreover, symmetry is necessarily a preference rather than a hard-and-fast rule in interpretation: every judge or justice must decide, applying their own interpretive approach, whether reaching a symmetric understanding is possible in any given area.

Even with those limitations and caveats, however, the Court could have done better in advancing symmetry in its most recent term. In the affirmative action case, a more measured ruling might have given force both to conservative opposition to racial classifications and to progressive aspirations to correct historic inequities. The Court’s approach in earlier cases of allowing race-conscious admissions as part of an individualized, “holistic” evaluation, free of quotas or automatic preferences, was an attempt to give force to both those concerns. The Court could have retained that approach while making the requirement of individualized review more rigorous. Alternatively, it might have made clear, as Justice Kavanaugh’s concurrence suggested, that schools may select race-neutral admissions criteria, such as a preference for low-income applicants or students from particular regions, even if one reason for doing so is to ensure admission of students from historically disadvantaged racial groups. By casting doubt on such options and embracing a more rigid rule of color-blindness, the Court effectively placed constitutional law on one side of a fraught partisan and ideological divide. 

Similarly, in National Pork Producers Council v. Ross, the case about California’s regulation of out-of-state production of goods offered for sale within the state, the Court should have tried harder to identify some generalizable principle to govern such federalism disputes in an evenhanded fashion. For example, the Court could have held, as Chief Justice Roberts argued for four justices in dissent, that laws like California’s may exceed states’ proper authority by imposing a substantial burden on interstate commerce. The Court’s confused and fractured ruling only seems likely to encourage states’ efforts to impose their preferences beyond their borders—precisely the opposite of what our divided and polarized country needs.

The conservative Court showed important signs of health in its latest term. While delivering on some key conservative objectives, the justices also made clear that they will not simply embrace conservative causes in a knee-jerk fashion. Going forward, however, the Court needs to avoid ad hocism and embrace a constitutional jurisprudence that offers a principled way of bestowing wins and losses across partisan and ideological divides. This approach will not only serve as an example for jurists from the other side if they regain control but also provide a common point of orientation for justices with differing interpretive outlooks. It might thus go some way towards defusing the partisan furies that treat politics as zero-sum combat and threaten to shred the shared constitutional commitments on which democratic politics ultimately depend.

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