Frederick Schauer
Andrew Coan’s of import book[i] on the limits of the Supreme Court’s decision-making capacity is built on 3 foundational points, all of which are correct. First is that the Supreme Court’s overall policy as well as political importance as well as salience are oft overestimated.[ii] The offhand comments of political pundits notwithstanding, the nation’s most highly salient policy questions are located some distance away from the Supreme Court’s docket. Even the most of import wellness aid questions, for example, are existence resolved (or not) legislatively, politically, as well as administratively rather than judicially. The same applies to immigration, where what the Supreme Court has does is non nearly every bit consequential every bit a host of executive, political, as well as administrative decisions. And when nosotros motion to tariffs, climate change, relations with State of Israel as well as Islamic Republic of Iran as well as China, handling of victims of sexual violence as well as sexual harassment, monetary policy, opioids, as well as the size of the American armed forces presence abroad, for example, the gap is fifty-fifty greater. And exactly every bit most of the of import political as well as policy issues overlap only loosely with the Court’s business, so likewise is most of what the Court does – fifty-fifty on questions of abortion, sexual orientation, as well as religious belief – located good downward on the listing of what the sophisticated polling information signal are the populace issues that Americans recollect most important.
Coan’s instant dot is that crisply formulated rules, including those emanating from the courts, tin preclude litigation. Jeremy Bentham recognized the litigation-stifling graphic symbol of clear rules to a greater extent than than 2 centuries ago,[iii] as well as although Bentham was motivated far to a greater extent than past times revulsion of the courts than recognition of their express capacity, he, similar Coan, understood that litigation is typically prompted past times the indeterminacy of the governing law. And thence if a legislature (for Bentham, as well as for the Napoleon of the Napoleonic Code) or the Supreme Court (for Coan) sets forth precise as well as easily understood acquit rules, the domain of dispute as well as thence of judicial dispute resolution is contracted.
Third, as well as relatedly, Coan demonstrates that doctrines of judicial deference to decisions of other branches or institutions may also trim down the orbit of judicial powerfulness as well as the grade of judicial involvement with questions of policy. Whenever a courtroom adopts highly deferential standards of review – rational set down as well as abuse of discretion existence obvious examples, as well as Coan usefully catalogs others – it makes its ain project smaller.
But although Coan is right inwards identifying as well as documenting these phenomena, the midpoint of his bulk lies inwards his claim that the limitations of judicial capacity inwards general, as well as Supreme Court capacity inwards particular, play a substantial utilisation inwards explaining why the Court leaves so many of import issues aside, why it formulates sharp-edged rules of conduct, as well as why it so oft adopts deferential touchstone of review. But although Coan accurately describes the express capacity of the Supreme Court, a capacity that would stay highly express fifty-fifty if the Court reverted to its before exercise of deciding roughly 150 cases a yr rather than the electrical flow 70, the soundness of his causal hypothesis seems less clear. Assuming (correctly) that the Court’s agenda overlaps only poorly with the nation’s policy as well as political agenda, assuming (correctly) that the Court oft defers to other branches as well as other institutions, as well as assuming (less patently correctly[iv]) that the Court oft formulates crisp rules of conduct, the query is whether these practices are the number of the Court’s express decision-making capacity.
The aforesaid causal query is rendered hard past times the availability of some number of alternative explanations – explanations for these 3 phenomena that mightiness non involve the constraints of a express capacity Supreme Court. For example, it mightiness last that a bulk of the Justices a bulk of the fourth dimension believed that deferring to Congress, to administrative agencies, or to the states was exactly the right thing to do, peradventure because of theories of federalism, democracy, separation of powers, or judicial competence. Or peradventure for some of the Justices some of the time, as well as thence peradventure for a bulk of the Justices some of the time, commencement gild policy or ideological preferences are doing much of the work. For example, Chief Justice Warren’s deferential approach to Congress inwards United States v. O’Brien[v] mightiness receive got been caused past times his worry that aggressive judicial patrolling of congressional motivation or of incidental effects on spoken language would make likewise many challenges as well as thence strain judicial capacity, every bit Coan posits, but it mightiness instead receive got been the production of an aversion to non-linguistic anti-war protests, an aversion that would explicate Warren’s dissent inwards Street v. New York.[vi] And then-Justice Rehnquist mightiness receive got joined the bulk inwards Washington v. Davis,[vii] a conclusion to which I shall homecoming presently, non because he was concerned most the strain on judicial capacity that would last produced past times judicial scrutiny of unintentional discriminatory effect, but because of his narrow catch of equal protection to a greater extent than generally.
Coan is admirably sensitive to such problems of ambiguous causation, as well as thence surveys as well as explores every bit alternative possible causes for the Court’s doctrines of deference as well as its occasional (Coan would say frequent) preference for comparatively stiff rules 3 candidates offered past times the political scientific discipline literature – the effect of relatively formal constabulary (the legalist model), the commencement gild policy preferences of the Justices (the attitudinal model), as well as the to a greater extent than sophisticated forms of attitudinal models that autumn nether the heading of strategic models. Coan finds all of these explanations less globally strong than his ain judicial capacity model as well as thence concludes, to receive got a quote from his tidings of equal protection but 1 applicable to his various other doctrinal examples, that “[t]he judicial capacity model does non explicate the Court’s conclusion to invalidate most race-based affirmative activity policies or its decisions to invalidate solid set down bans on same-sex spousal human relationship or same-sex intimacy. But it does explicate why conservative justices who oppose economical regulations of job organisation as well as high taxation rates on the wealthy every bit a thing of policy receive got resisted the temptation to land of report such laws to serious Equal Protection review. The same goes for liberal justices as well as laws that burden – or neglect to aid – workers, consumers, as well as the poor. The judicial capacity model also explains why the justices receive got pursued their ideological goals through a fairly stiff framework of tiered scrutiny that clearly marks off various narrow categories of regime activity for serious review, spell subjecting all others to essentially categorical deference.”
There is much that could last said most these insightful as well as ambitious explanatory claims, but I desire to focus hither on exactly 2 issues. One is the possibility of an of import omitted variable, as well as the other is the methodological query of what domain the explanatory claim purports to explain, as well as what methods mightiness justify such a conclusion.
With honour to the omitted variable, 1 concern, a concern that applies non only to Coan but also to most versions of attitudinal models, every bit my colleague Josh Fischman documents as well as analyzes inwards a forthcoming article,[viii] is exactly what the justices mightiness receive got attitudes about. Plainly the justices, similar most aware as well as educated Americans, receive got attitudes most abortion, affirmative action, same-sex marriage, as well as the house of religious belief inwards the populace square, alongside many others. But the justices are likely, fifty-fifty to a greater extent than than the educated public, also to receive got views about, for example, federalism, separation of powers, as well as the utilisation of unelected as well as life-tenured courts inwards making policy. Those views might, to last sure, themselves last the products of the justices’ views most the express capacity of the courts, but they mightiness instead last capacity-independent views most democracy, elections, efficient governmental organization, checks as well as balances, as well as much else. And to the extent that the justices receive got internalized such second-order attitudes most the extent to which they should concur dorsum on effectuating their first-order attitudes, these second-order attitudes may offering an alternative explanation for why the Court has oft developed doctrines that confine fifty-fifty the first-order attitudes of those who receive got developed as well as internalized them. And thus, for example, Justice White, the writer of the bulk catch inwards Washington v. Davis, as well as whose expansive views most equal protection are exemplified past times his willingness inwards Frontiero v. Richardson[ix] to process sexual practice discrimination every bit a genuine suspect classification as well as inwards Milliken v. Bradley[x] to bring together the dissenters from the Court’s resistance to multi-district remedies for segregation, mightiness receive got been concerned less most judicial capacity than that injecting the courts into likewise broad a arrive at of legislative as well as administrative decisions would last inconsistent with his ain innovation of democracy. We do non know whether this alternative explanation is sound, but without considering the possible effect of such second-order attitudes most the utilisation of the courts, attitudes that tend unfortunately to last neglected inwards most of the attitudinal literature, nosotros cannot conclude with whatever confidence that worries most judicial capacity are leading the justices to stifle their ain first-order policy preferences.
That such an alternative explanation mightiness be does not, of course, constitute that this alternative explanation is sound. But acknowledging that limitation leads to some other concern, 1 that is almost alone methodological. Admirably, Coan seeks to offering alternative explanations for many of the Court’s outcomes as well as thence to essay his ain judicial capacity explanation against these alternatives. Coan’s testing, however, employs a methodology that is at the rattling to the lowest degree controversial. In his ain words, he seeks to pull “causal inferences” most the causes of the Court’s doctrines of deference as well as most its seeming preference for litigation-limiting rules. In doing so, he adopts a “qualitative case-study design,” but as well as so a corking bargain turns on the alternative of the cases to last studied. And hither Coan says that he has selected only “a broad as well as various arrive at of capacity-constrained domains, but no normal domains, because the causal status on which the judicial capacity model is premised is non acquaint inwards those domains. This method of instance alternative . . . [seeks] non to generate a representative sample of the full general population of cases, but instead to position the subset of that population inwards which a causal inference drawn from private cases holds.”
Coan’s approach, 1 oft denigrated every bit “selecting on the dependent variable,” as well as which is every bit problematic for qualitative every bit for quantitative research,[xi] does indeed receive got the capacity to tell us something most the subset of cases inwards which the Court’s express decisional capacity plays a role. And that is an interesting as well as of import contribution, my caveat most the omitted variable aside. But the method that Coan employs does non have, nor does it purport to have, the powerfulness to explicate the causal factors at run inwards the total laid upwards of which this subset is a part. The method mightiness last useful inwards suggesting causal hypotheses most that total set, but really testing those causal hypotheses, fifty-fifty with qualitative as well as interpretive methods, nevertheless requires looking at the total set, as well as at the rattling to the lowest degree considering those instances inwards which the alleged causal agent was acquaint but for which the hypothesized effect was non present.[xii] If, for example, at that spot are instances both inside Coan’s doctrinal groups as well as also of other groups inwards which the judicial capacity hypothesis seems non to hold, that mightiness tell us something most its generalizability. Were the Court every bit concerned with judicial capacity every bit Coan posits, for example, it is unlikely it would receive got been every bit willing to allow judicial scrutiny of unintended effects every bit it has been inwards dormant commerce clause,[xiii] Establishment Clause,[xiv] as well as gratuitous spoken language cases,[xv] or every bit willing every bit it has been inwards various areas to utilisation release lists of factors rather than crisp rules.[xvi]
This is non to say that Coan’s judicial capacity explanations are unsound for some cases inwards some areas. But judicial capacity, which is indeed every bit express as well as every bit of import every bit Coan documents, may yet non receive got every bit much an effect on the Supreme Court’s doctrines every bit Coan concludes. Whether it does, as well as whether such an effect explains Supreme Court decision-making as well as opinion-writing to a greater extent than generally, remains either to last proved or disproved. Coan has offered us a really new as well as to a greater extent than than plausible hypothesis most 1 factor that mightiness influence the Court’s behavior, but broad-scale testing of that hypothesis remains every bit a project for the future.
Frederick Schauer is David as well as Mary Harrison Distinguished Professor of Law at the University of Virginia. You tin accomplish him past times email at schauer at virginia.edu
[i] Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (2019).
[ii] See Frederick Schauer, Foreword: The Court’s Agenda – And the Nation’s, 120 Harv. L. Rev. iv (2006).
[iii] Jeremy Bentham, Of the Limits of the Penal Branch of Jurisprudence 226-29 (Philip Schofield ed., 2010) (1789); Gerald J. Postema, Bentham as well as the Common Law Tradition 404-06 (1986); Dean Alfange Jr., Jeremy Bentham as well as the Codification of Law, 55 Cornell L. Rev. 58 (1969).
[iv] On the Court’s unfortunate reluctance to formulate broad as well as crisp conduct-guiding rules every bit oft every bit Coan as well as I would prefer, run into Frederick Schauer, Abandoning the Guidance Function – Morse v Frederick, 2007 Sup. Ct. Rev. 316.
[v] 391 U.S. 367 (1968).
[vi] 394 U.S. 576 (1969).
[vii] 426 U.S. 229 (1976).
[viii] Joshua Fischman, “Politics as well as Authority inwards the U.S.Supreme Court” (forthcoming 2020). Cf. Lisa A. Kloppenberg, Playing It Safe: How the Supreme Court Sidesteps Hard Cases as well as Stunts the Development of Law 2001).
[ix] 411 U.S. 677 (1973).
[x] 418 U.S. 717 (1974).
[xi] Gary King, Robert O. Keohane, & Robert Keohane, Designing Social Inquiry: Scientific Inference inwards Qualitative Research (1994).
[xii] Id. at 38.
[xiii] E.g., Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (1977).
[xiv] E.g., Lemon v. Kurtzman, 403 U.S. 602 (1971), which may no longer last skillful constabulary afterward The American Legion v. American Humanist Ass’n (June 20, 2019).
[xv] E.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989). Whether the Court’s often-announced effects scrutiny inwards gratuitous spoken language cases really has whatever seize with teeth is hardly clear. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1964). Nor is it clear that it tin or should. See Larry Alexander, Trouble on Track Two: Incidental Regulation of Speech as well as Free Speech, 44 Hastings L.J. 921 (1993).
[xvi] E.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). And also, Coan’s interpretation to the contrary, US v. Lopez, 514 U.S. 549 (1995), as well as US v. Morrison, 529 U.S. 598 (2000).
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