Polarization or Symmetry: The Court's Current Choice

Abstract

This short book review considers the arguments advanced in NEAL DEVINS & LAWRENCE BAUM, THE COMPANY THEY KEEP: HOW PARTISAN DIVISIONS CAME TO THE SUPREME COURT (2019) in light of the Supreme Court's decisions in its 2019-2020 term. Devins and Baum argue that the justices on the Supreme Court have become polarized along political lines to an unprecedented degree. They correctly suggest that this polarization risks politicizing both the Court itself and the constitutional law it crafts. The Court's decisions in its last term, however, suggest that it may be finding its way instead towards an approach this review's author has previously called "symmetric constitutionalism": the Court may be deliberately pushing back against the polarizing forces Devins and Baum identify and instead self-consciously crafting a constitutional law that distributes wins and losses across major partisan and ideological divides, in hopes of tempering partisan passions and telegraphing its commitment to neutral principles of civil liberty and law-bound governance. To help forestall the dangers presented by the partisan dynamics Devins and Baum document, the Court should pursue symmetry more deliberately, so that observers understand the Court is crafting legal principles with bipartisan benefits in the long run, as opposed to dispensing wins and losses in an ad hoc and result-driven way.

Keywords: supreme court, polarization, constitution