Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court

Abstract

Following Justice Kennedy’s retirement and the bitter fight over Justice Kavanaugh’s confirmation, increasingly polarized views about constitutional law in general, and specific constitutional cases in particular, threaten to undermine courts’ legitimacy, degrade their institutional capacity, and weaken public support for important civil liberties.

To help mitigate these risks, this essay proposes that judges subscribe to an ethos of “symmetric constitutionalism.” Within the limits of controlling considerations of text, structure, history, precedent, and practice, courts in our polarized era should lean towards outcomes, doctrines, and rationales that confer valuable protections across both sides of the nation’s major political divides, and away from those that frame constitutional law as a matter of zero-sum competition between competing partisan visions. In other words, courts should aspire to craft a constitutional law with cross-partisan appeal, avoiding when possible interpretations that favor one ideological position without possible benefit to others.

Reflecting on several cases from Justice Kennedy’s last term, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, this essay explores what subscribing to such an ethos might mean in practice. It also considers what critical purchase a preference for symmetry might offer in several controversial areas, including freedom of expression, structural constitutional law, equal protection, gun rights, and substantive due process.

Keywords: constitutional law, political process, interpretation, first amendment, second amendment, equal protection, due process, civil liberties