The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or the Reconstruction Amendments is now regarded as the conservative position. This article presents the first comprehensive examination of this phenomenon; it also supplies a label – “reverse polarity.” Relying on a case classification system designed to promote transparency, the article provides a detailed taxonomy of reverse-polarity issues. Three are defined by provisions of the Bill of Rights (the Second Amendment, the Takings Clause, and the Free Exercise Clause), the others by lines of precedent, primarily involving freedom of expression. The article also discusses other constitutional issues that may be evolving in the direction of reverse polarity. Beyond taxonomy, the article explores three ways of looking at reverse polarity. It considers reverse-polarity liberalism as a throwback to the Progressive Era and as an embrace of Justice Felix Frankfurter’s vision of judicial self-restraint. It examines reverse-polarity conservatism as an application of the theory of judicial review associated with Justice Harlan Fiske Stone’s famous Footnote Four in United States v. Carolene Products Co. More broadly, the article calls attention to an unusual feature of the Roberts Court: conservative as well as liberal Justices support “a generous or expansive interpretation of the Bill of Rights” – but in different cases. It is almost as though each group of Justices has found its own copy of the Constitution, with some rights printed in boldface and italics and others grayed out and indistinct on the page