Volume 2020, No. 2

PDF linkTable of Contents

Keynote Lecture

PDF linkEight Futures of the Nondelegation Doctrine

by Andrew Coan

Among close observers of the United States Supreme Court, there is a palpable sense of anticipation. Conservatives eagerly anticipate a sweeping constitutional revolution—a new “golden age of jurisprudence” in the words of Arizona Supreme Court Justice Clint Bolick. Liberals regard this prospect with mounting dread. But both sides take it more or less for granted that dramatic change is inevitable across a wide spectrum of doctrinal domains, spanning federalism, the administrative state, religious freedom, abortion rights, gun rights, property rights, and much more.

There is obviously something to this view. According to standard political science measures, the appointments of Neil Gorsuch and Brett Kavanaugh may well produce the most conservative Supreme Court in more than eighty years. It would be genuinely shocking if the next decade did not yield a rightward shift of some kind. It would not be at all surprising if that shift were quite significant, especially in the constitutional law of guns, religion, and abortion. But the judicial capacity model of Supreme Court decision-making developed in my book Rationing the Constitution suggests that both sides should temper their expectations. A sweeping revolution in U.S. constitutional law is unlikely to be imminent.


PDF linkEighty Years of Federalism Forbearance: Rationing, Resignation, and the Rule of Law

by Gil Seinfeld

Andrew Coan’s book, Rationing the Constitution, offers a novel account of the forces that drive Supreme Court decisions across a wide array of highly controversial, vitally important areas of law. The project is ambitious. It endeavors to improve our understanding of forces that constrain the form and, ultimately, the substance of our constitutional law along each of its major axes: federalism, the separation of powers, and individual rights. I think it succeeds. The book’s central claim—that familiar (but underexplored) institutional constraints and background norms sharply limit the range of choices available to the Court when it is called upon to enforce the Constitution—is almost certainly correct.

I am less confident, however, about the extent to which the precise contours of legal doctrine—at least in connection with federalism jurisprudence (and probably more broadly)—can be explained by reference to Coan’s judicial capacity model, as opposed to other forces. In that vein, this essay explores a hypothesis about the Court’s post-1937 federalism jurisprudence that might explain the arc of the doctrine at least as well as the judicial capacity model does, and that I think deserves more attention than Rationing the Constitution provides. The hypothesis is that, during the relevant period, there has never been a critical mass of Justices on the Supreme Court with a genuine appetite for seriously constraining federal power. And this is not because the Justices worry about the Court’s capacity to process the volume of cases that would arise if they established such constraints, but because doing so is unattractive in its own right. I am aware, of course, that many conservative jurists and commentators have vigorously lamented the explosion of federal power during and since the New Deal. Still, for a variety of reasons that I will explore in this essay, I am inclined to think this is more of a political talking point than the foundation for a genuine, actionable agenda for doctrinal change.

PDF linkRationing the Constitution vs. Negotiating It: Coan, Mud, and Crystals in the Context of Dual Sovereignty

by Erin Ryan

In Rationing the Constitution: How Judicial Capacity Shapes Supreme Decision-Making, Professor Andrew Coan makes the provocative argument that judicial capacity is the most determinative factor in the Supreme Court’s constitutional interpretation, especially regarding such critical realms as equal protection, takings, and the horizontal and vertical separation of powers. He contends that the Supreme Court’s legitimate anxiety over managing workflow to the federal bench operates more powerfully to shape its responses to the questions raised in these areas of law than any alternative theories of constitutional interpretation, including the doctrinal models popular most among legal academics and the strategic models more popular among political scientists. This essay assesses the major strengths and weaknesses of Coan’s argument, contrasting its convincing explanatory power with some of the limits of its own breadth of field. It also explores the intersection of his theory with a different capacity-driven theory of constitutional interpretation that I first offered in Negotiating Federalism and later in FEDERALISM AND THE TUG OF WAR WITHIN.

PDF linkJudicial Capacity, Causation, and History: Next Steps for the Judicial Capacity Model

by David S. Schwartz

Andrew Coan’s excellent book, Rationing the Constitution, introduces and elaborates his “judicial capacity model” of judicial decisionmaking. Coan’s elegant judicial capacity model (JCM) is remarkably predictive of the forms of judicial review in several important areas of American constitutional law. As Coan summarizes the model, “[i]n high-volume and high-stakes domains, the Court will be strongly constrained to employ some combination of deference and categorical rules.”

In this Essay, I will explore Coan’s commerce power example to raise some questions about the causal role played by the JCM in historical time. I argue that the next step in developing the JCM requires its proponent(s) to engage more closely with history. This requires confronting the fact that the constraint of judicial capacity is not a timeless abstraction, but a historically contingent fact that appears at various times and for historical reasons.

PDF linkComparative Capacity and Competence

by Eric Berger

Andrew Coan’s excellent book, Rationing the Constitution, sheds important new light on an important facet of Supreme Court decision- making: judicial capacity. Professor Coan argues persuasively that courts’ capacity—and, in particular, the U.S. Supreme Court’s capacity— plays an important role in shaping various constitutional doctrines. By “capacity,” Coan means the number of cases that courts can realistically decide while preserving the judiciary’s own professional commitments to careful deliberation and reasoned decision-making. Because judges realize that their resources are limited, they shape various constitutional doctrines to deter potential litigants, lest a flood of constitutional plaintiffs inundate them with more cases than they can responsibly handle. As Coan explains, “[t]he model’s core prediction is that, above a certain threshold, and especially in combination, high stakes and high volume will strongly constrain the Court to employ some combination of strong deference and categorical rules.” Coan’s attention to judicial capacity is a shift away from the academy’s historic attention to the related but distinct issue of judicial competence. Whereas “competence” encompasses judges’ expertise and skill, “capacity” is a matter of bandwidth. Coan explains that the two are closely linked. Judges might be capable of deciding a certain kind of case in theory, but if in practice they receive too many cases, their theoretical competence doesn’t get them very far. Capacity helps determine competence.

This symposium contribution considers whether and how comparative capacity and competence issues should inform judicial decision making. Building on some of my earlier work, it contends that courts should consider both their own and the relevant political branch’s capacity and competence. Judicial capacity constraints will necessarily play a role here, but this inquiry should be comparative. None of this is to attack Coan’s perceptive account of judicial decision-making but, rather, to suggest that his insights raise related normative questions with which judges and scholars should grapple.

PDF linkJustifying Judicial Modesty

by Stuart Chinn

In Rationing the Constitution, Andrew Coan offers a largely convincing theory of judicial behavior centered on the idea of judicial capacity. In this paper, I first briefly discuss some of the main elements of Coan’s argument in Part I, and then grapple with the status of judicial capacity concerns as a type or modality of judicial argument in Part II. In line with some of Coan’s comments throughout his book, my starting assumption is that judicial capacity concerns have not figured prominently in judicial defenses of judicial modesty. My first substantive task, however, is to provide some tentative support for this by cataloging some of the arguments that Supreme Court justices have offered in this regard in several of the Court’s key voting rights opinions. This is the focus of Part III.

However, if it is the case that judicial capacity concerns figure less prominently in judicial defenses of judicial modesty relative to some other themes, this leads to a related question: why are judicial capacity concerns not more commonly invoked in this context? In Part IV, I set forth some tentative answers. In short, I believe that the more conventional judicial defenses of judicial modesty tend to be more appealing to judges because they either invoke common underlying assumptions—among judges and within the broader polity—about the nature of the judicial role, or because they reference significant threats to judicial institutional prestige as informed by prevailing historical narratives. Given this, judicial capacity concerns are unlikely to figure prominently in judicial defenses of judicial modesty.

PDF linkGerrymandering and Judicial Incapacity

by Edward L. Rubin

It is difficult to imagine a situation more appropriate for the judiciary to resolve on constitutional grounds than partisan gerrymandering. This conclusion comes directly out of Legal Process School analysis and its clarion call in Footnote Four of United States v. Carolene Products. The essential feature of our legal system is the election of its leaders by the people. These representatives, not the judiciary or some other expert body, then make public policy and remedy any wrongs that the people feel they have suffered. It was this principle that was misunderstood by the Court’s economic due process decisions and that Carolene Products and its companion cases overruled. But in reaffirming this principle, the Court noted a major exception. If the electoral process is distorted or corrupt, if the people’s fundamental right to vote is impaired in some manner, then this essential feature of our government will not operate correctly. The people cannot remedy the situation because their means of doing so is precisely what has been impaired. This is the single most important reason, and according to some Legal Process thinkers, the only valid reason, for the judiciary to take action on constitutional grounds.

In Rucho v. Common Cause, the Supreme Court addressed the issue of partisan gerrymandering and concluded that this basic defect in our political process should not be addressed by the judiciary but rather resolved by that defective political process. The rationale in Chief Justice Roberts’ opinion for the majority is threadbare. Justice Kagan’s dissent is devastating. But underlying the majority’s unsatisfactory decision is a legitimate concern, one that surfaces repeatedly as the Chief Justice struggles to explain the result. This is the concern that Andrew Coan captures in his new book, Rationing the Constitution. Professor Coan observes that the Supreme Court’s capacity to address and resolve the issues presented to it is a limited resource, and argues that the Court’s awareness of this limitation exercises a profound effect on its decisions. Rucho could have been one of Professor Coan’s leading examples of his thesis had it not been handed down after the book was published. The decision follows exactly the path that Professor Coan’s theory would predict, and thus provides convincing evidence of his theory’s explanatory force. This Article will argue that the Court should have struck down partisan gerrymandering as unconstitutional.

PDF linkJudicial Capacities

by Jane S. Schacter

Andrew Coan’s Rationing the Constitution offers a powerful and elegant argument for the proposition that institutional limits impose a significant ceiling on the Supreme Court’s power. The Court simply lacks capacity, he tells us, to decide more than a small fraction of disputes. He lucidly shows that Justice Antonin Scalia was off—by many orders of magnitude—when he posited “a Supreme Court standing . . . at the apex of government, empowered to decide all constitutional questions, always and everywhere primary in its role.” Now, to be fair: One might simply dismiss this claim as vintage Scalian hyperbole. But there is more to the idea of a runaway court than Scalia’s perception alone. The historical line of political concerns about judicial activism—or what in earlier periods was branded “judicial oligarchy”—is long and enduring. By detailing the limits on the Court’s capacity to act, the book offers a strong corrective to any view of unlimited judicial power, and this corrective has obvious implications for the ability of the Court to autonomously advance social change.

Coan’s emphasis on the quantitative, however, leaves much to be said about the qualitative aspect of the Court’s ability to make powerful change, and to insert itself into many of the most contested and volatile debates of the day. In this sense, I think we must attend not only to capacity in the singular sense that Coan means it—the limited volume the Court can handle—but also to the plural capacities of the Court, understood as its many different capabilities to act…. In this Essay, I undertake to show that the fears of excessive judicial power that are a key launching point for Coan’s model are unlikely to be alleviated by his demonstration of volume-based limits.

PDF linkDocket Control, Mandatory Jurisdiction, and the Supreme Court’s Failure in Rucho v. Common Cause

by Carolyn Shapiro

Andrew Coan’s new book, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making, is a rare contribution to constitutional scholarship. It is primarily descriptive, not normative, and it offers a new analytical framework focusing on institutional constraints, not ideology or law. Coan argues that the Court’s doctrinal and analytical approaches are driven in part by limitations on judicial capacity. Although he mentions the federal judicial system as a whole, Coan’s primary focus is on the Supreme Court itself.

In this Essay, I build on and complicate Coan’s account. Coan begins his analysis with the New Deal (although he also acknowledges the significance of 1925, a key year for changes in the Court’s jurisdiction, as I will discuss). Here, I offer a deeper historical understanding of why and how the Court has attempted to manage its caseload, including when it has successfully appealed to Congress to address its concerns. This historical discussion, with its emphasis on the congressional role, suggests a normative critique of the Court’s use of JCM, at least in those few areas of law, such as constitutional challenges to congressional and legislative districts, in which Congress has maintained the Court’s mandatory appellate jurisdiction. More specifically, I argue that the Court’s recent decision in Rucho v. Common Cause, Inc., holding partisan gerrymandering nonjusticiable, was wrongly decided in part because in that case, the Court flouted an explicit and carefully considered congressional determination about the Supreme Court’s mandatory jurisdiction.

PDF linkWhat Do Constitutional Law Professors Do?

by David Fontana

This Essay—written for a symposium hosted by the Wisconsin Law Review on Andrew Coan’s splendid new book—examines the social space that non-clinical, tenure-track American constitutional law professors occupy, and whether that social space is a desirable one. Constitutional law professors are relatively unique among faculty in the current American research university for the degree to which they speak to those inside and outside of the university. Constitutional law professors are socialized by and participate in the research community of the university but also the elite legal profession. They aspire to speak truth to power, but they are also part of the power that they seek to evaluate. It is good for a society to have scholarly insights brought to bear on important decisions by powerful people, and law professors are increasingly the ones doing that. It is also good to have a scholarly discipline generated by combining its own original insights with the insights of other disciplines. As the humanities and social sciences produce more technical scholarship, more removed from the comprehension and concerns of daily life, this engaged and interdisciplinary role for constitutional law professors becomes more important because it is more uncommon. However, being such a part of the system that one aspires to evaluate also encourages law professors to be more deferential and defensive of existing power structures.

PDF linkRations and Takings

by Carol M. Rose

Andrew Coan’s judicial capacity model explains many things about the pattern of U.S. Supreme Court opinions. Among other things, it perhaps inadvertently explains why the Court makes such wretched decisions about state and local government, particularly in connection with regulatory takings claims. As Coan explains, the Court defines these small-scale regulatory issues as “normal,” not requiring anything more than sporadic intervention. But because it can dodge these issues, the Court never becomes familiar with them except in the most superficial way and has little incentive to come up with sensible solutions. Instead it episodically creates off-the-cuff categories that often disrupt state and local governance practices. This article will give a number of examples from takings cases, including several mentioned in Coan’s book, e.g. the “physical invasion” and “total takings” categories, as well as the Court’s vexingly intrusive decisions about conditions on land use permitting. Together these decisions create confusion, ignore the patterns in which property rights normally evolve, and impede state and local efforts to deal with major environmental problems such as waste management and adaptation to climate change. Many of the Court’s decisions also strongly hint at an underlying prejudice against state and local government.

PDF linkLeaving the Land of Easy Answers: Regulatory Takings, Rucho and the Nature of Constitutional Analysis

by Neil Komesar

Every facet of constitutional law raises the same basic question: when will, or should, the adjudicative process substitute its judgment for the political process. The basic issue of constitutional law is who decides or, more exactly, what decides, since the decision-making alternatives are not individuals but large processes or institutions. Thus, constitutional law is institutional choice. The central issue of constitutional analysis is how this institutional choice should be made. There are several conventional analytical approaches, including examining the text of the Constitution, seeking the meaning given that text by its Framers and focusing on essential constitutional values or goals. Or the institutional choice question can be addressed directly by assessing the relative merits of the adjudicative and political processes in any given setting. In this Article, I show that, especially when the analysis is normative (when we are asking what constitutional law should be), the conventional approaches are inherently insufficient unless they seriously 1 address institutional comparison and comparative institutional analysis.

PDF linkExtra-Judicial Capacity

by Miriam Seifter

Rationing the Constitution instructs us to think of the workings of our constitutional system, and courts in particular, through the lens of capacity. The book focuses mostly on the supply side of constitutional adjudication: how limited judicial resources shape the judicial decisions that courts supply. Coan does not altogether ignore the litigants who make up the demand side of judicial decision-making, though. He acknowledges the demand side when he posits that his model will work where cases are “high-volume and high-stakes”—terms I will return to shortly. But Rationing the Constitution’s principal aim, and accomplishment, is revealing how capacity constrains doctrine. The book sharpens our understanding of why courts supply the types of decisions they do.

In this brief symposium essay, I will focus instead on the demand side of judicial decision-making. My account is not at odds with Coan’s, but instead asks complementary questions outside of courts. This essay is thus about extra-judicial capacity. In the context of constitutional law, that capacity means the existence of some “constitutional community”— people who pay attention to, interpret, discuss, and invoke the constitution. Extra-judicial capacity, like judicial capacity, shapes constitutional law in ways that are worth exploring.

PDF linkA Republic, If the Courts Can Keep It?

by Laurence Claus

This contribution to a conference celebrating Andrew Coan’s Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard Univ. Press, 2019) makes three primary points. First, I explain why the Supreme Court’s flawed reasoning in INS v. Chadha supports Coan’s judicial capacity theory of Supreme Court decision-making. Second, I show why judicial capacity concerns do not support the Supreme Court’s decision in Rucho v. Common Cause to treat the constitutionality of partisan gerrymandering as a nonjusticiable political question. The Court could and should have announced a bright line rule against any partisan calculation in districting decision-making, and let lower courts adjudicate the pure question of fact that such a rule would raise. Third, I argue that the Court should have identified a nonjusticiable political question not in Rucho, but, as other recent scholarship has suggested, in Shelby County v. Holder. Congress’s provision for preclearance in the Voting Rights Act serves not only to uphold the promises of the Fourteenth and Fifteenth Amendments, but also to fulfill the national government’s constitutional duty to guarantee every state in the Union a republican form of government. The Court has long held that it will not second-guess the judgment of the elected branches about what republican form requires.

PDF linkBaller Judges

by Jon D. Michaels

We’ve been told, time and time again, to think of judges as umpires. Often we’re told this by judges themselves, including none other than Chief Justice John Roberts. Whether said disingenuously, aspirationally, or in all gosh-golly sincerity, judges like to be viewed as impartial officiants, not combatants, in contests implicating everything from war powers to riparian rights. And their view has more or less been endorsed, or reasons principled and strategic, by influential circles of lawyers, policymakers, and journalists. Now we’re confronted with a new, seemingly more honest, and decidedly just as important analogy: judges as managers. As Andrew Coan tells us in his illuminating and trenchantly argued book, Rationing the Constitution, judges must manage court dockets, dispensing—quite literally, rationing—justice mindful of the reality that juridical resources are in short supply. Though not (yet) as politically or culturally salient, Coan’s judges-as-managers analogy seems entirely more accurate and useful.

With due respect to both John Roberts and Andrew Coan, I’m not sure we want members of the Supreme Court or those sitting on the federal appellate courts to think of themselves primarily or even substantially as umpires or as managers, let alone as both…. So what should judges be?