Americans’ political divisions have infected constitutional law, threatening to produce entirely partisan understandings of the Constitution.  As I argue in a recent book, courts need to resist this tendency.  Rather than constitutionalizing one set of political preferences, courts should strive, when possible, for partisan and ideological symmetry:  they should favor constitutional understandings that equally protect interests on opposite sides of key divides.

What would such symmetry look like in practice?  The First Amendment provides a good example.  On the whole, the Supreme Court’s modern free speech cases require governmental neutrality:  laws governing expression generally cannot disfavor particular viewpoints or topics of discussion.  By understanding the First Amendment this way, the Court has ensured that every viewpoint—every position along the political spectrum—is equally protected against repression.

As a matter of original meaning, this understanding is questionable; the framers accepted some speech regulations that would be unconstitutional today.  Nevertheless, the neutrality-focused approach has remained a striking point of consensus on the Supreme Court.  Its political symmetry helps explain why.  In a sharply divided polity, each political camp has an interest in suppressing its rivals, so justices with varied outlooks can equally appreciate that broad and uniform protection for free expression helps prevent a downward spiral.

The same sort of mutual disarmament can work in other areas too.  For example, the Supreme Court has understood the Constitution’s federalist structure—its division of authority between the federal government and the states—to bar the federal government from compelling the states to administer or enforce federal laws.  While shielding Republican-led states from having to expand Medicaid or enforce federal firearms laws under Presidents Obama and Biden, this “anti-commandeering” principle now protects Democrat-led states from having to assist federal immigration enforcement under President Trump.

In another example, the Supreme Court recently rejected arguments that state legislatures could draw congressional districts and assign presidential electors on their own, without involvement by state governors or courts.  Given Republican dominance in many state legislatures, embracing this “independent state legislature” idea could have given one political camp built-in advantages in key aspects of American democracy.  By rejecting it, the Court embraced the more symmetric alternative of allowing continued state-wide debate over districting arrangements and presidential elections.

Despite the politics surrounding contemporary judicial appointments, favoring these sorts of understandings should appeal equally to judges with different political preferences and theories of interpretation.  Good judges do not wish to be remembered as result-driven partisans, and favoring symmetry provides a concrete way of avoiding interpretive partisanship.

Furthermore, favoring symmetry accords with key goals embodied in the Constitution itself.  The framers understood that partisanship—what they called “faction”—could be constitutionally destructive; George Washington worried it could produce “the ruins of public liberty.”  And when partisan animosity grew severe in the country’s early years, the Supreme Court under Chief Justice John Marshall sought to symmetrically restrain key threats to civil liberty such as treason prosecutions, judicially invented crimes, and unchecked executive authority.

Marshall’s approach should provide a model for courts in our own era of acute partisanship.  Yet recent decisions have too often eschewed symmetry and advanced a more one-sided jurisprudence.

In keeping with their policy preferences, progressives these days generally interpret the Constitution to advance social justice, protect sexual and reproductive autonomy, and enable flexible federal administrative solutions to problems like climate change.  Conservatives, by contrast, read the same document to require governmental colorblindness, protect traditional religion, and limit administrative power.

In many recent cases—in areas ranging from religious liberty and affirmative action to gun rights and administrative law—the Supreme Court’s Republican-appointed majority has manifestly advanced the conservative vision at the expense of its progressive rival.  The Democrat-appointed justices, though typically in dissent, have often done the reverse.  Each time the Court resolves cases in such polarized fashion, it alienates roughly half the country and promotes cynicism about the Court, the Constitution, and the rule of law.

Courts are only one part of our system and can only do so much to sustain the shared constitutional commitments that underlie our democracy.  But they can do quite a lot to undermine them.  If we want to avoid a systemic collapse, we cannot risk extending the polity’s cracks all the way down to its constitutional bedrock.  By favoring symmetric understandings—rugged rules that equally protect both political sides—courts can help forestall that danger.