University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2019 Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court Zachary S. Price UC Hastings College of the Law,
[email protected] Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post- Kennedy Supreme Court, 70 Hastings L.J. 1273 (2019). Available at: https://repository.uchastings.edu/faculty_scholarship/1736 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. 70.5-PRICE (DO NOT DELETE) 5/27/2019 9:48 AM Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post- Kennedy Supreme Court † ZACHARY S. PRICE 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.