I am grateful to Jack Balkin for organizing this symposium together with to the commenters on Rationing the Constitution for their close, careful, together with generous engagement amongst my book. Their wide-ranging posts lift to a greater extent than valuable together with interesting points than I tin address here. I volition thence focus on iv recurrent topics that strike me as primary: (1) extensions, applications, together with friendly amendments to my judicial capacity model of Supreme Court decision-making; (2) the seat of judicial capacity inward the legal procedure tradition; (3) the internal logic of the judicial capacity model; together with (4) causal inference together with the work of observational equivalence.
To start, it volition locomote helpful to restate the substance claims of the book. At to the lowest degree since Henry Hart’s famous 1958 Harvard Law Review Foreword, it has been good established that the Supreme Court tin create upward one's heed only so many cases per year—150-200 at most. It is also familiar wisdom that this express capacity influences the Court’s decisions together with evolution of constitutional doctrine, albeit inward diffuse together with indeterminate ways. Building on these foundations, Rationing the Constitution makes 2 novel claims: First, judicial capacity limits take away hold specially important bite—and existent predictive power—in many of the most of import constitutional domains, spanning federalism, separation of powers, together with private rights. Second, these limits are the production non just of express fourth dimension together with resources but also, crucially, of widely shared judicial norms. Chief amidst these is the Court’s felt demand to review virtually all lower-court decisions that invalidate federal statutes.
These substance claims are the premises for my judicial capacity model, which I pass most of the bulk attempting to substantiate using a multiple case-study enquiry design. In constitutional domains implicating a large bulk of federal statutes, this model predicts that the Supreme Court volition locomote strongly constrained to take away betwixt some combination of strong deference to the political procedure together with hard-edged categorical rules. This, inward turn, limits the Court’s powerfulness to challenge dominant political forces together with undermines its powerfulness to competently resolve constitutional controversies—categorical rules beingness to a greater extent than ofttimes than non besides unsmooth to sensibly define the contours of federalism, separation of powers, equal protection, etc.
Judicial capacity is apparently non the only factor that influences Supreme Court decision-making inward these domains. Ideology, strategic calculations, together with legal regulation all play of import roles, too. But the judicial capacity model helps to explicate the pattern of post-New Deal Supreme Court decisions inward ways that none of these other factors can. Or so Rationing the Constitution contends. On this contention, the bulk must stand upward or fall.
One concluding terminological clarification: When I utilization the term judicial capacity, I hateful the total bulk of cases that the courtroom system—and, inward particular, the Supreme Court—is capable of handling. I do non hateful the capacity of courts to make reliably practiced decisions, which I shall telephone telephone judicial competence. Nor do I hateful the capacity—or inclination—of courts to make social modify against the tide of dominant political forces, which I shall telephone telephone judicial independence.
Extensions, Applications, together with Friendly Amendments
In illuminating together with complementary posts, David Marcus together with Aaron-Andrew Bruhl depict attending to judicial capacity issues inward the lower federal courts that I do non hash out at whatever length inward my book. The focus of Rationing the Constitution is on the human relationship betwixt judicial capacity together with constitutional doctrine. And constitutional doctrine is made, for the most part, inward the Supreme Court. Moreover, through the hierarchical organisation of precedent, the Court projects its capacity-management decisions through the federal judiciary as a whole. But Marcus together with Bruhl helpfully demonstrate the payoffs of bringing lower courts into the story—payoffs that both enrich together with reinforce the judicial capacity model.
As Bruhl points out, at that topographic point is a substantial literature demonstrating that lower courts respond to caseload pressures past times limiting oral argument, delegating decision-making authorisation to police clerks, together with reviewing trial courtroom decisions to a greater extent than deferentially. Bruhl does non mention specific examples, but highlights of this impressive trunk of piece of work include William Richman & William Reynolds, Injustice on Appeal (2012); Bert Huang, “Lightened Scrutiny,” 124 Harv. L. Rev. 1109 (2011); together with Marin Levy, “Judicial Attention as a Scarce Resource,” 81 Geo. Wash. L. Rev. 401 (2013). To this listing powerfulness locomote added Bruhl’s ain “Deciding When to Decide,” 96 Cornell L. Rev. 203 (2011), an insightful illustration written report of docket direction inward the U.S. Courts of Appeal afterwards Blakely v. Washington (2004).
As Bruhl points out, at that topographic point is a substantial literature demonstrating that lower courts respond to caseload pressures past times limiting oral argument, delegating decision-making authorisation to police clerks, together with reviewing trial courtroom decisions to a greater extent than deferentially. Bruhl does non mention specific examples, but highlights of this impressive trunk of piece of work include William Richman & William Reynolds, Injustice on Appeal (2012); Bert Huang, “Lightened Scrutiny,” 124 Harv. L. Rev. 1109 (2011); together with Marin Levy, “Judicial Attention as a Scarce Resource,” 81 Geo. Wash. L. Rev. 401 (2013). To this listing powerfulness locomote added Bruhl’s ain “Deciding When to Decide,” 96 Cornell L. Rev. 203 (2011), an insightful illustration written report of docket direction inward the U.S. Courts of Appeal afterwards Blakely v. Washington (2004).
Together, these scholars take away hold persuasively shown that lower federal courts are simultaneously nether much to a greater extent than constant capacity pressure level than the Supreme Court together with much to a greater extent than express inward the tools available to them to handle this pressure. Unlike the Supreme Court, the lower courts cannot handle their dockets past times turning away cases. They also take away hold express flexibility to brand doctrine to a greater extent than deferential or rule-like. Laboring nether such constraints, the lower courts take away hold had no selection but to compromise the minimum professional person standards—extensive oral argument; lengthy published opinions; piddling or no delegation of actual decision-making to police clerks together with administrative staff—that Supreme Court justices take away hold the luxury to process as sacrosanct.
Indeed, inward most legal domains, the Supreme Court’s discretionary jurisdiction enables it to hold these minimum professional person standards without much consideration of the bulk of litigation its decisions volition invite downward the road. Bruhl together with Marcus hash out 2 such domains, vividly demonstrating how differently the Supreme Court behaves exterior of the capacity-constrained domains discussed inward my book. Bruhl focuses on the void-for-vagueness doctrine together with its application to federal sentencing laws inward U.S. v. Johnson (2015), which led to thousands of novel filings inward the federal district courts together with courts of appeals. It is impossible to imagine the Court issuing the same conclusion inward a earth where it was compelled to review fifty-fifty x per centum of these novel cases itself. But because federal sentencing is a normal domain, 1 inward which the Court is content to leave of absence all but a handful of cases to the lower courts, judicial capacity did non substantially constrain its doctrinal options. The contrast amongst capacity-constrained domains, where the Court feels compelled to review virtually every lower courtroom conclusion invalidating a federal law, is striking.
Marcus points to a different trunk of lower-court cases to brand a different point: “Components of dozens of province prison theatre systems stay nether federal judicial supervision. In recent decades, litigants take away hold successfully sued dozens of province together with metropolis foster aid agencies, winning broad injunctive remedies for tens of thousands of children. Federal judges play key roles inward the direction of disability policy inward cities across the country.” As Marcus recognizes, “[t]his litigation does non autumn inside the domains that require intensive Court supervision. The Court tin tolerate doctrinal mushiness together with whatever bulk of litigation it invites when a lawsuit successfully challenges the constitutionality of province police or local authorities policy administration.” Yet this pattern of social reform litigation underscores an of import qualification to the judicial capacity model: The sudden limits that judicial capacity imposes on judicial powerfulness extend only to capacity-constrained domains.
Many of the most of import constitutional domains autumn into this category, but non all of them. And inward domains where the Court is content to review only a little fraction of cases, the lower courts retain important liberty to deviate from the deference together with categorical rules predicted past times the judicial capacity model inward capacity-constrained domains. I believe this qualification is implicit inward the book, but Marcus is right to flag the “sweeping intimations close the limits of federal judicial powerfulness that surface hither together with at that topographic point inward Rationing the Constitution.” These intimations should locomote read to apply only to capacity-constrained domains.
Adrian Vermeule’s comments are inward a similar vein. While pronouncing Rationing the Constitution “generally admirable, clear, together with correct,” he proposes 3 characteristically helpful refinements inward the shape of “second-order complexities close the thought of rationing judicial capacities.” I am happy to consider all of these as friendly amendments, though I recall Vermeule may overestimate their practical significance.
First, Vermeule reframes the bulk of litigation invited past times the Supreme Court’s doctrinal choices as an externality—a terms the Court’s discretionary jurisdiction permits it to partially shift onto lower courts together with the bar. This reframing crisply captures the dynamic Bruhl noted inward U.S. v. Johnson, where the Supreme Court’s void-for-vagueness ruling buried the lower courts nether an avalanche of novel sentencing challenges. Since this is a normal domain, the Court reviewed only a tiny handful of these cases, leaving lower courts to bear nearly all of the costs.
Even inward capacity-constrained domains, where the Court feels compelled to review a large fraction of cases, the Court tin externalize some of the costs of its doctrinal choices. The Court does non experience compelled to review every lower courtroom conclusion inward whatever of these domains. In particular, it does non experience compelled to review decisions invalidating province together with local legislation or decisions upholding federal statutes against constitutional challenge. The costs of these cases are borne wholly past times the lower courts. On the other hand, what distinguishes capacity-constrained domains from normal domains—their rattling sine qua non—is the Court’s inability to avoid reviewing an overwhelmingly large fraction of cases. (Usually, this inability is the production of the judicial norm requiring the Court to review virtually every lower-court invalidation of a federal statute.) In other words, these are domains inward which the Court is forced to internalize much of the terms of its doctrinal choices. In this sense, Vermeule’s cry for close externalities is non so much a refinement of the judicial capacity model as an incisive relabeling of its primal underlying mechanism.
Vermeule side past times side points out that the Supreme Court may take away hold the powerfulness to expand its judicial capacity budget inward a variety of ways, including through its ain constitutional decisions. If this is true, the Court’s “capacities may together with so themselves locomote partly endogenous to judicial choices over time.” Vermeule offers numerous potential examples. The most straightforward is “judicial decisions approbation administrative tribunals or legislative courts for workers’ compensation cases together with routine bankruptcy matters.” But the listing could become on at groovy length. At a minimum, it would certainly include the Court’s restrictive modern standing doctrine, the heightened pleading standards established inward Bell Atlantic v. Twombly together with Ashcroft v. Iqbal together with decisions similar U.S. v. Morrison that invalidate statutory rights of action.
All of these decisions are significant, inward their ain right together with for their impact on the judicial capacity budget. Yet none changes the fundamental reality on which the judicial capacity model is premised. In capacity-constrained domains, the Court’s felt compulsion to review nearly every lower-court invalidation of a federal statute sharply constrains the carte of doctrinal options. As Vermeule correctly observes, this constraint is non an inflexible police of nature. It cannot, however, locomote easily evaded without sacrificing deeply rooted judicial commitments to minimum professional person standards together with the uniformity of federal law.
Vermeule’s concluding suggested refinement is the most interesting. He calls it “the alert shot,” together with I cannot improve on his elegant explanation: “The threat is stronger than the execution. While the Court cannot do rattling much, the standing threat to override political decisions anywhere potentially affects the anticipated reaction of institutions everywhere.” The upshot is that the Supreme Court’s capacity limits may locomote less important than they seem. If the mere threat of judicial invalidation tin deter the political branches from acting, it is a error to catch the Court’s powerfulness only inward terms of the decisions it renders. One must also consider the threat of farther activeness that each conclusion implies together with the reaction of political actors to that threat.
I take away hold no quarrel amongst Vermeule’s logic. The threat of judicial invalidation may good take away hold a broader restraining number than would the Court’s actual exercises of constitutional review. Like Marcus’s cry for close social reform litigation inward the lower federal courts, this is a valuable caveat to my work organisation human relationship of judicial capacity’s implications for judicial power. Still, I am skeptical that this number is of groovy practical import inward capacity-constrained domains, for 2 reasons. First, a threat that is never—or almost never—carried out ceases to locomote credible at some point. The Court’s stark tape of deference inward capacity-constrained domains, punctuated past times a smattering of narrow categorical rules, seems unlikely to locomote on members of Congress upward at night. Second, the history of federal legislation inward these domains does non suggest to me a Congress that is cowed into submission past times the remote threat of judicial review. Admittedly, this is an impressionistic judgment. Perhaps at that topographic point is some muted number non visible to the naked eye, but I do non believe whatever such number is sufficient to undermine the book’s primal conclusions.
To locomote clear, Vermeule does non genuinely debate the contrary. He is careful to admit that the threat is non ever stronger than the execution. His cry for is “merely that it tin be, together with the analyst ever has to consider whether it is.” To this theoretical point, I am happy to accede.
Judicial Capacity together with Legal Process
Maggie Blackhawk together with Mariah Zeisberg both fault Rationing the Constitution for failing to engage adequately amongst of import prior scholarship. Zeisberg is bothered past times what she sees as my “false” together with immodest claims to novelty. More substantively, she thinks I ought to take away hold mined the existing literature to a greater extent than thoroughly for testable hypotheses that powerfulness compete amongst the judicial capacity model. She offers the piece of work of Alexander Bickel, Lawrence Sager, together with Gerald Rosenberg as illustrative examples. Blackhawk believes that a fuller engagement amongst the legal procedure tradition could together with should take away hold made my judicial capacity model to a greater extent than sensitive to the interplay betwixt the Supreme Court together with other institutional actors.
I portion Zeisberg’s esteem for Bickel, Sager, together with Rosenberg, as my citations to their piece of work attest. It is also truthful that I am next inward their footsteps inward the broad sense that Adrian Vermeule identifies when he writes that Rationing the Constitution “develops seamlessly out of a venerable line of piece of work that considers constitutional theory … inward low-cal of the capacities of judges together with the resources constraints nether which they labor, specially constraints of time, attention, information, together with political capital.” On the other hand, Rationing the Constitution is a rattling different form of bulk from The Least Dangerous Branch, Justice inward Plainclothes, or The Hollow Hope. Bickel together with Sager both offering normative—or, to a greater extent than precisely, interpretive—accounts of U.S. constitutional do focused on judicial competence, democratic legitimacy, and, inward Bickel’s case, the adventure of populace backlash to unpopular decisions. Neither devotes whatever substantial attending to judicial capacity, as I utilization that term. Rosenberg’s work organisation human relationship is positive, rather than normative, similar Rationing the Constitution, but his overwhelming focus is judicial independence, rather than judicial capacity.
This is non to suggest that my judicial capacity model lacks intellectual antecedents. Richard Posner’s Federal Courts: Crisis together with Reform together with Neil Komesar’s Imperfect Alternatives were the direct inspirations for my bulk together with render the foundation on which it rests. Both address exactly the concept of judicial capacity that is my focus inward Rationing the Constitution together with explicate the crucial role of judicial hierarchy inward limiting the capacity of the courtroom organisation as a whole. But neither Posner nor Komesar is concerned principally amongst constitutional law. The same is truthful of Peter Strauss, whose article “One Hundred Fifty Cases a Year” was some other of import inspiration together with influence. For all of these reasons, I stand upward past times my claim that Rationing the Constitution “is the kickoff book-length piece of work on constitutional police to take away hold judicial capacity seriously,” though it powerfulness take away hold been ameliorate to say “the kickoff systematic exam of the influence of judicial capacity on U.S. constitutional doctrine.”
Zeisberg’s to a greater extent than substantive electrical charge is that Rationing the Constitution overlooks a goldmine of testable empirical hypotheses inward the piece of work of Bickel, Sager, Rosenberg, together with others. I do non uncertainty that an imaginative reader could generate many testable hypotheses from this literature. The universe of such hypotheses, as Zeisberg sure enough understands, is effectively limitless. But she does non seat fifty-fifty 1 positive hypothesis that is (a) genuinely defended past times a prominent legal procedure theorist together with (b) could plausibly explicate the pattern of Supreme Court decisions discussed inward Rationing the Constitution ameliorate than the judicial capacity model. Nor am I aware of whatever hypothesis that satisfies both of these criteria.
The 2 examples Zeisberg cites, drawn from Rosenberg together with Bickel, are both normative rather than positive claims. The “hypothesis” she derives from Rosenberg is illustrative: “Courts concerned amongst capacity should fourth dimension their major interventions inward ways that are supported, rather than blocked, past times the other branches” (my emphasis). Rosenberg makes no such normative claim, but he most certainly does non brand the positive claim that courts genuinely do fourth dimension their interventions inward this way. Indeed, the major evidence for his thesis that courts are incapable of spearheading social modify consists of failed judicial attempts to overcome political resistance.
For these reasons, I chose to focus my analysis of the judicial capacity model on the competing models of judicial decision-making that are most widely together with vigorously advocated inward the existing literature. I do non claim to take away hold shown that the judicial capacity model dominates all potential alternatives. I do non fifty-fifty claim that the judicial capacity model dominates the leading models I compare it to inward the bulk as to all features of Supreme Court decision-making. I claim only that it is capable of explaining some of those features ameliorate than those alternative models. Given the broad influence of the legalist, attitudinalist, together with strategic models, this is strong evidence inward favor of the judicial capacity model, though Zeisberg is sure enough right that at that topographic point is to a greater extent than piece of work to locomote done.
Maggie Blackhawk’s critique is to a greater extent than limited, together with her comments also take away hold a constructive dimension. While recognizing the judicial capacity model as “valid together with valuable,” she suggests that greater engagement amongst the legal procedure tradition would take away hold made the model stronger. More specifically, she cites the piece of work of Henry Hart & Albert Sacks, Phil Frickey, together with William Eskridge for the proffer that the Supreme Court does non operate inward an institutional vacuum. This is certainly right together with important, as is Blackhawk’s narrower cry for that the behaviour of the political branches influences the prospective bulk of litigation. As I explicate inward the book, “significant political opposition” to the Court’s constitutional decisions inward capacity-constrained domains “tends to make a high bulk of litigation that taxes the limits of judicial capacity.” It is inward this sense that judicial capacity helps to explicate the Court’s express powerfulness to challenge dominant political forces.
Yet the opposite is also true, as Blackhawk points out: If dominant political forces welcome aggressive judicial review, as they sometimes do, judicial capacity powerfulness operate as less of a constraint. Instead of litigating vigorously upward to the Supreme Court, the authorities powerfulness simply pass upward to defend broad swaths of legislation against constitutional challenge. In theory, this could allow the Court to denote stringent novel limitations on federal legislation without inviting much litigation that it would experience compelled to review. This is an sharp together with valuable point; Blackhawk is right that I could—and peradventure should—have done to a greater extent than to develop it.
On the other hand, I suspect its practical import is quite limited, for 2 reasons. First, inward most capacity-constrained domains, it would locomote hard for the Supreme Court to articulate broad constitutional limits on federal legislative authorisation without goring quite a few oxen on both sides of the political spectrum. Second, fifty-fifty when the authorities refuses to defend legislation challenged as unconstitutional, other interested parties volition ofttimes take away hold standing to measurement inward together with litigate inward the government’s stead. Think of the challenge to the Affordable Care Act currently pending inward Texas, which the Trump direction has refused to defend. At whatever rate, I am unaware of whatever capacity-constrained domain inward which the political branches take away hold engaged inward sufficiently broad acquiescence to eliminate—or fifty-fifty substantially weaken—the constraints of judicial capacity.
One possible exception, suggested past times Blackhawk, is the constitutional prohibition on sexual activity discrimination, which the Solicitor General famously opposed, inward part, on judicial capacity grounds. Hundreds of federal laws on the books at the fourth dimension discriminated on the soil of sex. Yet no overflowing of cases materialized that the Supreme Court felt compelled to review. The judicial capacity model offers a partial explanation. The constitutional prohibition on sexual activity together with discrimination hardened into a virtual per se dominion quite quickly—a mere 5 years elapsed betwixt Reed v. Reed together with Craig v. Boren—rendering the final result of most cases a foregone conclusion. (More on this full general dynamic below.) But Blackhawk is right to suggest that the women’s displace is a crucial constituent of the story, both inward triggering doctrinal modify together with inward shaping social attitudes to cut down the demand for litigation. This cry for is fully compatible amongst the judicial capacity model together with indeed strengthens it, as Blackhawk suggests.
The Logic of Judicial Capacity
Aziz Huq together with Mariah Zeisberg lift different but overlapping objections to the internal logic of my judicial capacity model. Huq questions my definition of capacity-constrained domains; my disceptation that judicial capacity tends systematically toward deference; together with the human relationship betwixt categorical rules together with the bulk of litigation. Zeisberg makes a similar cry for close categorical rules together with also questions whether my model generates falsifiable predictions. I believe all of these questions are answered inward the book, though peradventure non as clearly as they should take away hold been if they did non register amongst readers as perceptive as Huq together with Zeisberg.
Capacity-constrained domains are those inward which judicial capacity strongly constrains the Supreme Court to employ some combination of strong deference together with categorical rules. Examples discussed inward the bulk include the commerce power, the spending power, the nondelegation doctrine, presidential administration, the equal protection clause, together with regulatory takings. Conceptually, I suggest that capacity-constrained domains come upward inward 2 basic flavors—high-volume together with high-stakes. In the former, the sheer bulk of potential litigation is what constrains the Court’s doctrinal choices. In the latter, the principal constraint comes from the high fraction of prospective cases inward which the Court would experience compelled to grant review. Some domains autumn into both of these categories; I telephone telephone this 3rd laid hybrid domains.
As I explicate inward the book, this three-part framework is meant as a heuristic: “What ultimately matters is the number of potential cases inward which the Supreme Court would experience compelled to grant review. This number is inevitably together with ever a constituent of both stakes together with volume.” For example, neither the Fourth Amendment nor Title VII qualifies as a capacity-constrained domain, fifty-fifty though both involve thousands of actual together with potential cases per year. The argue is simple: the Court feels compelled to review only a tiny fraction of these cases; therefore, neither of these domains is probable to overwhelm the Court’s express capacity.
A parallel cry for holds for something similar the Emoluments Clause. The Court is probable to experience compelled to review every successful Emoluments Clause challenge—a rattling high fraction of cases—but no plausible interpretation of that clause is probable to invite a large plenty bulk of litigation to revenue enhancement the Court’s capacity. Thus, the Emoluments Clause is non a capacity-constrained domain.
The Commerce Clause is different. The bulk of potential litigation is in all probability smaller than the existing bulk of Fourth Amendment together with Title VII litigation. But the Supreme Court feels compelled to review virtually every lower courtroom conclusion invalidating a federal statute. As such, fifty-fifty a hundred successful commerce-clause suits per twelvemonth would severely revenue enhancement the Court’s express capacity. Other capacity-constrained domains—like Equal Protection together with regulatory takings—implicate preponderantly province together with local laws, which the Court does non experience compelled to review inward large numbers. But these domains also implicate federal laws, whose invalidation the Court does experience compelled to review. This, together amongst the large potential bulk of litigation, brings Equal Protection together with takings inside the ambit of the judicial capacity model.
I hope this clears upward Huq’s mistaken impression that bulk is doing all of the heavy lifting inward the judicial capacity model. If anything, stakes—the fraction of cases the Court feels compelled to review—are to a greater extent than important. This explains why the bulk focuses so heavily on the invalidation of federal statutes, which is the side past times side query Huq raises. In theory, a large plenty bulk of statutory cases or constitutional cases involving the actions of private executive officials could pose a threat to the Supreme Court’s express capacity. But the fraction of such cases that the Court feels compelled to review is so depression that this is hard to imagine inward practice. Huq points out that null inward the Court’s formal rules gives precedence to cases involving federal statutes, but David Marcus gets this right: “no observer of the Court could plausibly uncertainty that [this] commitment exists.”[1] Contrary to Huq’s intimation, this is a purely positive observation close the Court’s certiorari practice, non a normative 1 close how that do should operate.
As the bulk explains, this characteristic of the Court’s do is also contingent, rather than necessary. Huq is right that the justices powerfulness alter or abandon it, peradventure out of frustration amongst the limits of judicial capacity. In theory, the justices powerfulness also create upward one's heed to delegate much greater decision-making authorisation to police clerks or to eschew written opinions or fifty-fifty to create upward one's heed cases past times money flip. Any of these changes would enable the Supreme Court to create upward one's heed far to a greater extent than cases together with peradventure some of these changes volition eventually come upward to pass. But the professional person norms undergirding the judicial capacity model take away hold functioned as fixed stars of Supreme Court direction from at to the lowest degree the New Deal era. No important modify seems probable inward the close term.
Huq side past times side points out that categorical rules tin locomote intrusive as good as deferential: “No federal rule-making amongst the forcefulness of law,” for instance. This is right together with fully consistent amongst the judicial capacity model. In fact, Chapter xi discusses Huq’s precise illustration as an illustration of judicial capacity’s impact on the constitutional selection set: “[S]weeping reforms” similar Philip Hamburger’s proposal to abolish binding administrative rules “might locomote consistent amongst the limits of judicial capacity, due to their starkly categorical character, but nevertheless worse than the illness they were intended to cure.” Thus far, most of the justices take away hold considered sweeping categorical limits besides unpalatable to screen inward most capacity-constrained domains. The limits of judicial capacity take away hold thence to a greater extent than ofttimes than non compelled the Supreme Court to adopt categorically deferential rules similar the rational soil test, supplemented past times the occasional together with narrow categorical bound similar Clinton v. New York’s prohibition on line-item vetoes.
Of course, the preferences of the justices on this score could ever change. If they do, judicial capacity could conceivably force the Court toward to a greater extent than sweeping interventions than the justices would adopt inward a earth without capacity constraints. I explicitly Federal Reserve notation this possibility inward the book. Still, it strikes me as to a greater extent than theoretical than real. The types of sweeping rules Huq has inward heed would locomote extraordinarily disruptive together with would, inward many cases, stand upward for an incredibly unsmooth machinery for achieving their underlying purposes. Even amongst a important ideological shift, the probability of the Court adopting sweeping constitutional limits of this grapheme seems quite low. Nor would such limits offering ironclad safety against a judicial capacity overload. Lochner era limits on federal legislative powerfulness were largely categorical inward nature. Yet their sweeping orbit led to a greater extent than than 100 federal district judges to number to a greater extent than than 1,600 injunctions against New Deal legislation inward the summertime of 1935 alone. Had the Court non retreated from these limits inward 1937, it is doubtful how much longer it could take away hold borne the strain.
Huq’s concluding point, echoed past times Zeisberg, is that categorical rules themselves may evidence malleable together with unpredictable together with thence neglect to inoculate the Court against capacity overload. To illustrate this point, Huq together with Zeisberg both cry for to the economic/noneconomic distinction of Lopez and Morrison together with the activity/inactivity distinction of NFIB v. Sebelius. I concord no brief for either of these decisions or the wisdom of the rules they embrace. But the of import cry for for the judicial capacity model is that both clearly insulated the vast bulk of federal legislation against constitutional challenge. They did so non through the intrinsic clarity or precision of the categorical distinctions they employed, but past times clearly signaling that those distinctions imposed extraordinarily narrow limits on federal power. This signaling was explicit inward Chief Justice Roberts’s insistence inward NFIB that the Affordable Care Act was the only federal police inward history to regulate economical inactivity. It was implicit inward Lopez’s reaffirmation of Wickard v. Filburn on the soil that consumption of home-grown wheat counts as economical activity.
The clarity of these signals did non deter all entrepreneurial litigators, but for almost 10 years afterwards Morrison, the Courts of Appeals rejected every commerce-power challenge they heard, together with the Supreme Court denied review. When the Ninth Circuit in conclusion broke this pattern inward Gonzales v. Raich, the Court reversed inward a belt-and-suspenders persuasion that defined economical activity amongst sweeping breadth. The Court also reinvigorated the rational soil essay together with the necessary together with proper clause as alternative grounds for upholding federal legislative power. In dissent, Justice O’Connor defendant the bulk of using “a lexicon definition of economic science to skirt the existent work of drawing a meaningful line betwixt ‘what is national together with what is local.’” She was exactly right, together with this is just what the judicial capacity model would predict. It is besides early on to assess the legacy of NFIB v. Sebelius, but the preliminary evidence suggests a strikingly parallel story.
Finally, Zeisberg asks what it would take away hold to falsify the judicial capacity model together with suggests that the Court’s adoption of the conceptually malleable commerce powerfulness tests discussed inward a higher seat should count as falsification. I tried to locomote as explicit on this cry for as possible: In capacity-constrained domains, “the judicial capacity model predicts that the courtroom volition locomote strongly constrained to employ some combination of deference together with categorical rules such that the authorities volition almost ever win, or the application of the Court’s essay volition almost ever locomote readily predictable past times judges or litigants, or both. This prediction is apparently non perfectly precise together with its content volition vary to some extent past times context. Nevertheless, it is quite demanding together with easily falsifiable.” For the reasons explained above, I believe the Court’s recent commerce-power decisions are fully consistent amongst the judicial capacity model. Indeed, they are some of its best illustrations.
Causal Inference together with Observational Equivalence
Establishing the consistency of the judicial capacity model amongst the Supreme Court’s decisions is the slowly part. The far to a greater extent than hard query is how to disentangle the causal role of judicial capacity from other competing explanations for the pattern of Supreme Court decisions inward capacity-constrained domains. If 1 or to a greater extent than of those explanations is every bit consistent amongst the Court’s decisions, how is 1 to adjudicate betwixt them? This is the work of observational equivalence, together with it is an extremely thorny one. Frederick Schauer, Victoria Nourse, together with Mariah Zeisberg all lift probing questions on this front. In response, I am tempted to quote Philip Roth, quoting Joe Louis: “I did the best I could amongst what I had.” Causal inference is exceedingly tricky, no enquiry pattern is perfect, together with no unmarried written report tin realistically aspire to locomote definitive. But I believe the methodological choices inward Rationing the Constitution were well-justified together with that the bulk supplies strong evidence to back upward the judicial capacity model.
To explicate this belief, I must address 2 distinct questions raised past times the commenters. The first, emphasized past times Schauer together with Nourse, is whether valid causal inference requires comparing of capacity-constrained domains amongst normal domains. The respond is no.
Any consideration of this query must start amongst the crucial premise that illustration studies employ a different form of causal inference from that employed past times statistical analysis, contra the piece of work of King et al. cited past times Schauer. Rather than patterns of co-variation across independent together with dependent variables, causal inference inward illustration enquiry is based on “the correspond betwixt what empirical evidence nosotros would hypothesize that the [causal] machinery should leave of absence together with what nosotros genuinely reveal inward the case.”[2] (Some older qualitative approaches—such as Mill’s method together with its various offshoots—do seek to depict causal inferences from variance across little numbers of cases, but these approaches are immediately widely viewed as suspect when used for this purpose.) This explains why some case-study researchers prefer the terms “causal condition” together with “outcome” to “independent” together with “dependent variables.” Within a given case, neither the value of the causal status nor the value of the final result genuinely varies. Instead, a causal condition, such as express judicial capacity, either does or does non displace a detail outcome, such as deference or categorical rules.
From this work organisation human relationship of “within-case” causal inference, it follows that the rationale for studying multiple cases is non to examine variation across cases—for instance, inward the frequency of categorical rules or deferential decisions across capacity-constrained together with normal domains. Instead, the argue for studying multiple cases is to seat the bounds of the population inward which a given causal inference—made inside private cases, rather than across them—holds. For this purpose, the only relevant cases are those inward which the causal status (or the corresponding value of the independent variable) is present. Here that agency the capacity-constrained domains inward which the judicial capacity model predicts that the limits of judicial capacity volition strongly constrain Supreme Court decision-making.
Within this category, the latest qualitative methods literature recommends studying as broad together with various a arrive at of cases as possible. The greater the number together with multifariousness of cases inward which a causal inference holds, “the ameliorate nosotros are able to infer [that] what was found inward the chosen cases should also locomote introduce inward other typical cases throughout the population.”[3] As such, the illustration studies inward Rationing the Constitution encompass a broad together with various arrive at of capacity-constrained domains, but no normal domains, since the causal status on which the judicial capacity model is premised is non introduce inward those domains. This method amounts to selecting on the independent variable (or causal condition), non the dependent variable, as Schauer suggests. It does non make selection bias because its destination is non to generate a representative sample of the full general population of cases, but rather to seat the subset of that population inward which a causal inference drawn from private cases holds.
This is non to suggest that normal domains are completely irrelevant to the judicial capacity model. Schauer is right that a closed exam of domains inward which the Supreme Court is non constrained past times judicial capacity could “tell us something about” the model’s generalizability. The symposium contributions of David Marcus together with Aaron Bruhl are practiced examples, illustrating that the Supreme Court feels far freer to employ mushy, non-deferential standards inward (at to the lowest degree some) normal domains than it does inward capacity-constrained domains. Many other examples could locomote adduced to the same effect. Influenza A virus subtype H5N1 systematic exam of such domains would certainly locomote valuable together with could assist to to a greater extent than clearly grade the boundary betwixt capacity-constrained domains, where the judicial capacity model applies, together with normal domains, where it does not. But this was beyond what I could undertake inward a unmarried book. Its omission does non bear on the strength of the causal inference inward the domains I discuss, only the extent to which that inference tin locomote generalized beyond those domains.
Schauer is also right that the judicial capacity model needs to work organisation human relationship for “those instances inward which the alleged causal agent was introduce but for which the hypothesized number was non present.” Nourse puts the same cry for to a greater extent than concretely: Coan “must explicate variance”—i.e., capacity-constrained domains “in which high capacity does non yield the vivid line rule, or deference.” If at that topographic point were capacity-constrained domains inward which the model’s predictions did non hold, this would indeed locomote a work requiring explanation. If no satisfactory explanation were available, the existence of such domains would falsify the model.
Fortunately for the model, at that topographic point are no such domains, at to the lowest degree non that I am aware of. The possible examples suggested past times Schauer—the dormant commerce clause, the establishment clause, the “time, place, together with manner” branch of gratuitous speech communication doctrine, together with Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)—are all normal domains inward which the Supreme Court feels perfectly comfortable denying review inward virtually all cases. This is largely because the Court’s decisions inward these areas threaten few—and, inward the illustration of Daubert together with dormant commerce, no—federal laws. In this sense, these domains are similar to the void-for-vagueness together with social reform cases discussed past times Bruhl together with Marcus. Far from undercutting the judicial capacity model, they vividly illustrate how much freer the Supreme Court feels to employ vague, non-deferential standards exterior of capacity-constrained domains.
This silent leaves the query of observational equivalence. As Schauer together with Zeisberg observe, judicial deference could locomote explained past times a legalist commitment to judicial restraint, rather than judicial capacity. It is truthful that such a commitment—which powerfulness locomote grounded inward democratic legitimacy or institutional competence—could explicate whatever given deferential decision. It almost certainly does explicate the deference embraced past times at to the lowest degree some of the justices some of the time. But most of the legalist literature on judicial restraint is normative, rather than positive. I am aware of no important positive theory of judicial behaviour predicting that Supreme Court justices volition systematically deport deferentially over long stretches of fourth dimension out of a legalist commitment to judicial restraint. Even if at that topographic point were such a theory, it could non easily explicate the Court’s occasional willingness to invalidate federal legislative activeness inward capacity-constrained domains using categorical rules.
Of course, the Court’s utilization of such rules powerfulness locomote explained past times a complementary legalist commitment to rule-bound decision-making, grounded inward administrative convenience or predictability. But similar the literature on judicial restraint, the legalist literature touting the virtues of rules is primarily normative, rather than positive. Influenza A virus subtype H5N1 principled commitment to these virtues powerfulness explicate why some justices employ categorical rules some of the time. But this literature supplies no convincing argue to human face that the Court would systematically employ categorical rules, rather than standards, when invalidating authorities activeness inward capacity-constrained domains. If anything, as Adrian Vermeule points out, the Court inward full general has an incentive to over-produce vague standards, which “externalize the costs of uncertainty onto litigants together with lower courts.” This incentive disappears—or is at to the lowest degree greatly reduced—in capacity-constrained domains where the Court feels compelled to review a large fraction of the litigation generated past times vague standards. This is why the judicial capacity model predicts that the Court volition seldom invalidate authorities activeness inward these domains except inward the shape of categorical rules, which is exactly what the evidence shows.
To locomote sure, at that topographic point are cross-cutting incentives for the justices to employ categorical rules, many of them relating to the effective command of lower courts. These incentives are the dependent area of a little but growing positive literature on rules together with standards. But as I summarize inward the book, “the only prediction that [these models] back upward is that the selection of doctrinal shape volition locomote unpredictable.” They cannot, therefore, explicate why the Supreme Court would exhibit a stable together with predictable preference for rules when invalidating authorities activeness inward capacity-constrained domains.
To amount up, at that topographic point is apparently some overlap betwixt the predictions of the judicial capacity model together with legalist commitments to judicial restraint together with categorical rules. Legalist commitments do non predict the systematic deference or screen of categorical rules that the judicial capacity model does, but they do predict some judges volition defer to the democratic procedure or employ categorical rules some of the time. To the extent that this prediction overlaps amongst the predictions of judicial capacity model, it represents a illustration of observational equivalence. The evidence is consistent amongst both models together with is thence uniquely explained past times neither.
The upshot is that some—though non all—of the Supreme Court’s deference together with rule-bound decisions inward capacity-constrained domains could locomote the production of legalist commitments. Alternatively, this pattern of decisions powerfulness locomote the production of judicial capacity limits, or it powerfulness locomote the articulation production of both judicial capacity together with legal principle. The available evidence is consistent amongst all of these possibilities. Yet the judicial capacity model silent stands lonely inward its powerfulness to explicate the Supreme Court’s systematic deference inward capacity-constrained domains together with the Court’s unwillingness to depart from such deference except inward the shape of hard-edged categorical rules. There is much to a greater extent than to locomote said on this subject, but I take away hold already gone on far besides long. I refer whatever interested readers to Chapter 12 of Rationing the Constitution, specially pages 182-86.
I volition closed where I began, past times thanking all of the symposium participants for their thought-provoking contributions together with Jack Balkin for organizing. This give-and-take has given me a groovy bargain to recall close together with much grist for futurity work. I hope others volition bring together me inward carrying the projection forward.
[1] See also Justice Elena Kagan on Supreme Court together with Constitutional Law, C-SPAN (Aug. 31, 2016), https://www.c-span.org/video/?414445-1/justice-elena-kagan-supreme-court-constitutional-law (“[A]nytime some other courtroom invalidates a federal statute, we’ll ever take away hold that illustration . . . on the theory that Congress’s statutes shouldn’t locomote invalidated, except past times us, that we’re the only courtroom that gets to do that inward the end.”); H.W. Perry, Jr., Deciding to Decide: Agenda Setting inward the USA Supreme Court 2949-50 (ebook 1991).
[2] Derek Beach & Rasmus Brun Pedersen, Causal Case Study Methods: Foundations together with Guidelines for Comparing, Matching, together with Tracing 116 (2016); see also Gary Goertz, Multimethod Research, Causal Mechanisms, together with Case Studies 89 (2017); Gary Goertz & James Mahoney, Influenza A virus subtype H5N1 Tale of Two Cultures: Qualitative together with Quantitative Research inward the Social Sciences (2012); Alexander L. George & Andrew Bennett, Case Studies together with Theory Development inward the Social Sciences (2005).
[3] Brun & Pedersen, supra, at 549.
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