This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

This chapter addresses symmetry’s implications for expressive freedom and religious liberty. Symmetry supports maintaining First Amendment law’s current focus on neutrality, notwithstanding emerging critiques that this approach lacks a strong historical foundation and unduly limits governmental regulation of offensive or dangerous ideas. At the same time, symmetric interpretation counsels against expanding the emerging “First Amendment Lochnerism” that threatens to extend constitutional protections for free expression into areas of economic and workplace regulation. A preference for symmetry also supports protecting religious groups, when possible, through more general protections for freedom of expressive association rather than through religion-specific constitutional doctrines. Although religious liberty may once have been a symmetric principle, today religion-specific protections risk placing constitutional law on one side of a fraught political divide over religion’s place in public life.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

This chapter advances theoretical reasons to support symmetric interpretation. First, favoring symmetry accords with the Constitution’s character as a comparatively terse, “framework” document focused on establishing democratic procedures rather than definitive policies. Second, an ethic of symmetric interpretation accords with widely accepted features of judicial role-morality. Finally, symmetric interpretation accords with the framers’ own constitutional aspirations and interpretive methods. Multiple widely accepted theoretical considerations in constitutional law thus support preferring symmetric understandings when possible.

Originally established by “we the people,” as its preamble majestically states, the Constitution belongs to us all. But Americans increasingly treat it as the property of one political faction or the other. In keeping with their own preferences, conservatives interpret the Constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while at the same time limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown ever more divided and polarized, preventing either side from implementing its goals through federal legislation, both coalitions have dreamed of capturing the courts and implementing their vision instead through constitutional interpretation. A document that should be a source of unity and shared commitments has become a vehicle for extending political conflict.

A sustained period of Conservative government would normally be expected to usher in constitutional stability. But the reverse was largely true for the period 2010-24. During these years constitutional controversies were rarely far from the news, partly thanks to deliberately planned changes, but mostly due to radically shifting conventions and political behaviour. Across the time period, the direction of change was also very far from consistent. The initial coalition years were marked primarily by pressures towards greater constitutional pluralism, though Liberal Democrat reform ambitions were often held back by Cameron’s Conservatives. Later, any prospect of calm under single-party government was soon punctured by the pressures of Brexit. This eventually brought into question almost every aspect of the UK’s constitutional arrangements, and inflicted painful splits within the Conservative Party over questions of governance. In particular, Boris Johnson’s populist approach was characterised by wholesale disregard for constitutional norms, and highlighted vulnerabilities in the UK’s key democratic arrangements which few would previously have anticipated. If one commonality can be discerned across this fourteen-year period of constitutional extremes, it is the largely unconservative nature of policy.

The modern era of partisanship in Supreme Court confirmations began during LBJ’s presidency. It saw two successful Supreme Court nominations and two failed ones that had lasting consequences. As the president, the Senate, nominees, interest groups, and the public mobilized, they created and politicized the confirmation process, and Republicans realized how powerful a tool the threat of an “activist Supreme Court” could be in shaping and uniting the GOP.

Why does the science of brain development have such compelling influence on our thinking about children’s development? This question is explored in relation to an important Supreme Court decision concerning adolescent responsibility in which the findings of developmental neuroscience were influential but misleading. In considering this case, the chapter explores the concepts of neurorealism (i.e., brain images provide “visual proof” of the brain’s influence on mental processes) and neuroessentialism (i.e., brain processes are the material basis for mental processes). Then the chapter describes why we are – but should not be – neurodeterminists by showing how the brain and mind are mutually influential in development and that both are affected by experience. The chapter also describes the difficulties of attributing specific mental processes to particular areas of the brain, and considers the importance of context and culture in the development of brain and mind. The chapter shows that without due consideration of the multiple influences on the developing brain and mind, and careful examination of the contexts in which they develop, mistaken applications of developmental brain science are more likely. The clear and accurate communication of the science is thus crucial to public understanding and responsible policy applications.

This chapter examines the design and performance of the most prominent recent innovation in platform governance, the Facebook (now Meta) Oversight Board. It contextualizes the examination of that board in the rule of law ideas of the preceding chapter. In the course of this analysis, it also develops some ideas about the normative function of platform legalism in building a kind of hybrid corporate/userbase platform identity which may be morally valuable as well as tactically valuable in resolving controversial governance issues. Finally, it suggests that the Oversight Board's handling of the "great deplatforming" of Donald Trump illustrates the capacity of lawlike modes of the decision to shape such an identity. It also serves as a counterexample to some of Carl Schmitt's ideas about sovereignty and emergency power.

Scores of lawsuits have pushed retirement plan sponsors to shorter, easier-to-navigate menus, but – as Ian Ayres and Quinn Curtis argue in this work – we’ve only scratched the surface of retirement plan design. Using participant-level plan data and straightforward tests, Ayres and Curtis show how plan sponsors can monitor plans for likely allocation mistakes and adapt menus to encourage success. Beginning with an overview of the problem of high costs and the first empirical evidence on retirement plan fee lawsuits, they offer an overview of the current plan landscape. They then show, based on reforms to a real plan, how streamlining menus, eliminating pitfalls, and adopting static and dynamic limits on participant allocations to certain risky assets or “guardrails” can reduce mistakes and lead to better retirement outcomes. Focusing on plausible, easy-to-implement interventions, Retirement Guardrails shows that fiduciaries need not be limited to screening out funds but can design menus to actively promote good choices.