Aziz Huq
Andrew Coan is non exactly a terrific scholar—a quick perusal of “Rationing the Constitution” confirms that—he is equally good a pillar of the scholarly community inward American constitutional law. As organizer of the only field-wide constitutional constabulary event, held every wintertime inward Tucson, he has innovated in addition to thereby made a substantial contribution to the field. (I should give away that he has twice invited me equally commentator. I’ve profited much on both occasions from the ground in addition to papers, but promise to ignore that generosity inward the response that follows).
Coan’s blueprint of the Tucson conferences provides a useful counterpoint to the draw of piece of work organisation human relationship of judicial review offered inward “Rationing the Constitution.” The firstly offers an ecumenical in addition to various perspective on many constitutional questions. The latter, called the judicial capacity account, explains why nosotros consider the Court using only a minor exercise of “the constitutional selection set” (p.165), i.e., the laid of all possible extrusions of constitutional prohibitions in addition to mandates via a selection alongside all potential doctrinal specifications. On Coan’s reading, judicial constraint arises from the Justices’ commitment to sure norms of professionalism, uniformity, in addition to “timely in addition to efficient access” to adjudication (pp.14-16). These norms assist explicate why the Court hews to clear, formal rules or deference to elected institutions when doing otherwise invites either “high volume” or “high stakes” litigation (p.23). The ensuing draw of piece of work organisation human relationship of constitutional review is causally distinct from the legalist, attitudinal, in addition to strategic models of judicial conduct that dominate academic literature now.
Influenza A virus subtype H5N1 churlish reduction of Coan’s thesis would live on a uncomplicated tautology: “the Court does only what it tin do.” The account’s richness in addition to utility, however, springs from its identification of norms respecting Supreme Court adjudication equally the source of constraint (p.158). It thus stands or falls on the extent that these norms tin do load-bearing analytic work. Although at that spot is much that is new, important, in addition to valuable inward Coan’s theory, I cannot milk tremble qualms. Some pertain to his draw of piece of work organisation human relationship of when the Court experiences a capacity constraint. The to a greater extent than querulous, though, domestic dog his supposition that norms tin do the needful explanatory work.
I start with unopen to comments nigh the ways inward which Coan suggests that adjudication of a discrete legal number tin generate capacity ‘bite.’ He sketches two. The firstly is that it is of such high mass that “no procedural recalibration or shifting of resources from other areas could maybe stalk the tide” (p.25) The 2nd is that an number is of such high stakes that the Court “is much less willing to tolerate disuniformity” such that the “significant demand” on the Court’s attending volition “very rapidly create a … bottleneck.” (p.29). Both these capacity-straining dynamics hinge on the sheer numerosity of cases that the Supreme Court faces. They exclude the possibility of extrinsic forces equally a banking concern check on judicial action.
To get with, I am non sure “high volume” in addition to “high stakes” are split upward categories. There is no “pure” case, Coan notes, of the latter (p.29). In practice, he invariably stresses the “enormous volume” of cases equally a dispositive factor (p.110). Occam’s razor mightiness stimulate got been wielded hither to skillful effect.
Yet the category of “high volume” cases is equally good troubling. At first, Coan’s Definition of “high volume” issues is framed inward damage of challenges to “government activeness … at all levels.” (pp.25-26). But inward subsequent chapters, he suggests that it is only litigation involving federal legislative or agency activeness falls inside his bailiwick (see, e.g., pp.74, 108, 152-53). And inward either case, Coan seems resolutely focused on the Supreme Court alone, rather than the mass of cases experienced yesteryear the federal judiciary equally a whole.
I think Coan is best read to encompass the latter, less capacious Definition (although I cannot live on sure, consider pp.25-26). To me, the most interesting enquiry is why. Why, first, should nosotros think nigh capacity inward damage of exactly the Supreme Court? As Marin Levy documented inward a 2013 article, the Court’s opinions to a greater extent than frequently than non limited “floodgates” concerns nigh the federal judiciary equally a whole, rather than exactly the Supreme Court. Why non accept the Court at its word? And then, why exactly federal laws in addition to regulations? Why non equally good count conflicting rules on the conduct of private federal officials? Or federal statutes, including “superstatutes” that are to a greater extent than consequential in addition to to a greater extent than frequently litigated than many constitutional provisions (p.35)? Or the federal validity of conflicting nation laws? Coan hither cannot rely on unopen to textual commitment. The formal criteria for certiorari review adumbrated inward Supreme Court Rule 10 underscore interjurisdictional conflict in addition to “important question[s] of federal law,” including disputes nigh statutory interpretation in addition to administrative law. It does non pick out the narrower category to which Coan appeals.
I volition render below to attempt to respond those questions. Here, I think it’s sufficient to say that there’s to a greater extent than to Coan’s damage “high volume” in addition to “high status” than firstly meets the eye. Both are doing normative labor beyond what their plain-spoken exteriors allow.
Before nosotros larn to those answers, a 2nd chemical factor of Coan’s draw of piece of work organisation human relationship merits attention: This is the implication that when the Court faces high mass or high stakes it volition “feel strongly constrained” (p.31) to either defer to the elected branches or else adopt unopen to sort of categorical rule. This means, on Coan’s view, that “the authorities volition almost ever win, or that the application of the Court’s examine volition almost ever live on readily predictable yesteryear judges in addition to litigants” (pp.39-40; emphasis inward original). Notwithstanding the exercise of disjunctive inward that sentence, I read Coan to propose that the Court is usually “constrained” inward ways that generate the eponymous constitutional rationing. Indeed, the gist of the mass is that the footprint of judicial review volition to a greater extent than frequently than non live on quite limited.
The occupation hither is that Coan’s analysis does non necessarily betoken toward either a highly diluted constitutional shadow, or a predictably predictable rule. Rather, his analytic model is consistent with a powerful Court capable to dramatically reshaping the landscape of federal constabulary inward unanticipated ways.
To get with, at that spot is no ground why a capacity-derived constraint on the adoption of standards, in addition to a felt compulsion to exercise instead rules, reduces the shadow of constitutional prohibitions. There is no reason, equally Coan implicitly acknowledges later, that the Court cannot adopt rules that while ruthlessly across the existing federal regulatory landscape (p.172). “No independent agencies.” “No administrative adjudication.” “No federal rule-making with forcefulness of law.” Such large things, equally T.E. Lawrence famously said (at to the lowest degree per David Lean), tin stimulate got minor beginnings. The Court, I think, is perfectly capable of using crisp rules to generate sweeping effects.
Nor are rules necessarily predictable or tractable inward the fashion that Coan assumes. Just reverberate on ii of Coan’s leading examples of stable in addition to predictable categorical rules: the economic/noneconomic distinction of Lopez in addition to the activity/inactivity of Sebelius. I learn Lopez a few hundred feet from where Gary Becker’s Nobel medal is kept. Becker won for “[e]xtend[ing] the domain of economical theory to aspects of human conduct which had previously been dealt with yesteryear other social scientific discipline disciplines such equally sociology, demography in addition to criminology.” Whatever 1 thinks of its merits, that trunk of work—and the enormous trunk of scholarship inward its wake—complicate the economic/noneconomic distinction. Nor is it at all clear why the Sebelius dominion “threatened only 1 existing federal statute.” (p.73). Students of federal ability good recollect that the sin of Ollie’s Barbeque was 1 of omission—inactivity inward the marketplace of African-American customers. If these rules stimulate got proved infertile berths for follow-on litigation. it has aught to do with their verbal formulation equally rules. (Readers of the Hart/Fuller ground volition take away no persuasion on that score). Coan’s endeavour to derive a steady-state equilibrium from the juridical potency of rules, therefore, is unfounded. Something else only is needed to explicate why the floodgates don’t open.
Neither the weather condition nor the consequences of constrained judicial capacity inward Coan’s theory, then, is equally clear equally he suggests. But these concerns are ultimately ancillary to a deeper occupation with the theory—a occupation that goes to the really oculus of its contribution.
The causal motor of Coan’s theory, recall, are a laid of norms associated with Supreme Court adjudication. Coan himself says, inward an uncharacteristically ungainly plough of phrase, that “What the judicial capacity model adds is the insight that judicial norms are crucial to agreement the constraining forcefulness of judicial capacity” (p.158) At the same time, he equally good recognizes but “bracket[s]” the possibility that his load-bearing norms stimulate got “structural determinants.” (p.17). But I do non think this is a plausible demarcation of analytic scope, in addition to I do non believe that an draw of piece of work organisation human relationship of judicial conduct that relies on “norms” lone equally its foundation tin fully avoid a mensurate of dubious circularity.
Influenza A virus subtype H5N1 firstly ground for concern is that invoking “norms” equally causal determinants of judicial conduct allows for many degrees of freedom: In the absence of whatever determinate fixation of what those norms entail, an analyst tin but expect at the conduct to live on explained, in addition to and so ground dorsum to a norm explanans. As I hinted above, Coan invites this variety of criticism when he embeds primal damage such equally “high volume” in addition to “high stakes” with hidden assumptions nigh which caseload matters, in addition to what kinds of disputes are important. The adventure hither is that “norms” are beingness derived hither but yesteryear reasoning dorsum from observed behavior. It is difficult to consider how this procedure—which allows for the derivation of norms to predict conduct from that really behavior—can live on a ground for strong causal claims.
An additional occupation is that unopen to of the specific norms that Coan cites are not, inward fact, feature of the federal legal system. He cites, for instance, a norm of “timely in addition to efficient access to the legal system” (p.16). This norm is for sure non observed inward of import federal contexts, such equally immigration law. Perhaps the norm remains equally aspiration, fifty-fifty equally it is traduced on the ground. If so, Coan ought to give us unopen to ground to maintain to travel inward seriously equally a normative commitment.
Finally, reliance on norms equally a source of capacity constraint begs the enquiry of why those norms do non buckle inward the confront of opposite felt compulsions. The electrical current constitutional dogfights over Brexit inward the United Kingdom of Great Britain in addition to Northern Ireland stimulate got nicely illustrated how longstanding in addition to seemingly inviolable norms tin bear witness all of a abrupt diaphanous. One of the pressing in addition to fascinating questions at the fourth dimension of this writing (early August 2019), indeed, is what constitutional conventions persist inward honor to parliament-executive relations. Conventions inward the U.K., equally such norms are known inward British constitutional parlance, stimulate got long been idea to a greater extent than durable than their analogs inward American law. Yet they buckled there. And if non there, why non here, specially since none of the norms upon which Coan relies are memorialized inward text or judicial precedent? Even setting to 1 side questions of content, therefore, it is non sufficient to invoke the fact of a convention. It is equally good necessary to offering an draw of piece of work organisation human relationship of why the convention is stable in addition to why it volition persist inward the teeth of countervailing pressure level to ends-oriented violation.
None of this is to say that the judicial capacity model ought to live on abandoned. To the contrary, I think that Coan makes a useful start on clarifying the proper exercise of norms inward an draw of piece of work organisation human relationship of judicial behavior, specially when he recognizes the potential endogeneity of the judicial capacity model to alternative legal in addition to strategic accounts, in addition to vice versa (pp.48-49). But inward my take in to a greater extent than needs to live on said nigh the way inward which norms are specified in addition to theirs causal predicates for the judicial capacity model to ultimately endure. I promise that “Rationing the Constitution” industrial plant equally a useful firstly measuring to that larger project, a projection that Andrew Coan is eminently well-qualified to pursue.
Aziz Huq is the Frank in addition to Bernice J. Greenberg Professor of Law at University of Chicago Law School, in addition to a visiting professor at Stanford Law School. You tin achieve him yesteryear email at huq at uchicago.edu
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