Part II - Symmetry Applied

Summary

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.