We need a Supreme Court for all Americans

The Supreme Court was on the ballot last month, and Donald Trump’s win dashed progressive dreams of reforming the court or changing its personnel.

Meanwhile, conservatives face the temptation of pushing our constitutional jurisprudence in still more rightwing directions. Doing so would be a mistake — what our era of division and distrust needs is a less political jurisprudence.

For some time, constitutional law has been getting increasingly politicized. As the two main parties have polarized, each camp has advanced a rival constitutional vision aligned with its goals. Progressives understand the Constitution to advance social justice, protect sexual and reproductive autonomy, and enable flexible federal administrative solutions to problems like climate change. Conservatives read the same document to require governmental colorblindness, protect traditional religion, and limit administrative power. Both sides have dreamed, in effect, of achieving central policy goals through constitutional interpretation.

The GOP now has the upper hand in this game. With a 6-3 majority on the court and the chance to entrench their dominance, many will now urge the Republican-appointed justices to pursue the conservative vision still more aggressively.

But enacting a partisan program is not what the U.S. Constitution is supposed to do. On the contrary, the framers hoped to establish a framework of governance that would limit the “spirit of party,” as George Washington put it. In an era of acute division like ours, that means courts should favor, when they can, constitutional decisions that equally restrain both sides, rather than favoring one side’s goals over the other’s.

To its credit, the Supreme Court has pursued precisely this goal in a number of recent cases—though progressives have rarely given it credit for doing so.

As one example, the court’s controversial decision in Trump v. United States held that all presidents are at least presumptively immune from criminal liability based on official acts. Far from ushering in a dictatorship, as many have claimed, this ruling’s most immediate effect may now be to impede a campaign of retributive and politically motivated prosecution against Trump’s predecessor, Joe Biden.

At the same time, although the decision was ambiguous and potentially overbroad in some respects, it likely preserves potential liability for bribe-taking and other serious abuses for presidents in both camps.

Similarly, in a result decried at the time by many progressives, the court held in 303 Creative LLC v. Elenis that a state could not penalize a conservative Christian web designer for declining to create custom websites for same-sex weddings. However, the court took pains in its reasoning to emphasize that its holding would apply equally to progressive businesses in the future. The court’s holding now ensures that bans on religious or political discrimination cannot prevent progressives in creative fields like web design, filmmaking or advertising from refusing to help craft messages they abhor.

Even the court’s controversial decision rejecting a right to abortion in Dobbs v. Jackson Women’s Health Organization was politically symmetric in important respects. In its reasoning, the court embraced an approach to identifying fundamental constitutional rights that center on “history and tradition,” meaning the pattern of laws adopted around the country over time.

Understanding fundamental rights in this way should give conservatives and progressives parallel opportunities to shape the court’s jurisprudence in the future by achieving legislative victories at the state, local and federal levels. Right now, it likely protects both a right to personal defense favored by conservatives and a right to same-sex intimacy favored most ardently by progressives.

It also ensures that parents, not the government, can make basic choices about their children’s upbringing in both Republican and Democratic jurisdictions. If applied honestly, this approach could even end up supporting a right to abortion in the future if enough states shift their laws in that direction.

In contrast to these symmetric rulings, the court has reached more one-sided decisions in other cases. Its Second Amendment decisions recognizing an individual right to bear arms have effectively constitutionalized one side of the fraught political debate over gun control.

Likewise, in decisions overturning major regulatory initiatives of the Biden administration, the court has ostensibly sought to protect Congress’s authority to make fundamental policy choices, but it has done so selectively and in ways that are unlikely to impose parallel restraints on the more deregulatory administrative agenda of Republican presidents.

After their electoral win last month, conservatives might hope to push such politically one-sided rulings still further, but decisions like these alienate roughly half the country from the constitutional principles that they must live under. Ironically, moreover, the GOP’s sweep shows that pursuing such goals through constitutional law is unnecessary. Republicans can protect gun rights through the political process, and Trump would likely have rescinded the Biden administration’s most ambitious regulations anyway.

Amid our intense political conflicts, the Constitution’s role as a source of shared commitments and stable ground rules has never been more important. But courts cannot credibly enforce the Constitution’s requirements if their rulings work consistently to only one partisan camp’s benefit. To help strengthen the Constitution — and reinforce their own authority in the process — courts should favor understandings that instead work in parallel across key divides.

Zachary S. Price is a Professor at UC Law San Francisco (formerly known as UC Hastings). His book "Constitutional Symmetry: Judging in a Divided Republic" was published last month by Cambridge University Press.

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