Balkinization: September 2019

Balkinization
an unanticipated consequence of
Jack M. Balkin

Balkinization Symposiums: A Continuing List

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

The 2018 Seegers Lecture: Emoluments and President Trump

Admit the Bearer: Impeachment of the President (Revised and Updated)

Judicial Review Comes to Britain

Testing the Judicial Capacity Model

Normative Constitutional Scholarship meets Judicial Capacity

Is the Constitution a Power of Attorney? A Commentary on Lawson and Seidman

Judicial Capacities: Some Second-Order Problems

Joan Biskupic is Asking the Wrong Question

Call for Papers -- ACS Public Law Workshop @ AALS 2020

Methodological Quibbles and Their Non-Quibbly Implications

Judicial Norms and Judicial Capacity

Andrew Coan and Legal Process

Rationing the Constitution: Beyond and Below

Comments on Rationing the Constitution

Introduction to Balkinization Symposium on Andrew Coan, Rationing the Constitution

Thoughts on the SG’s “Lesbian Comparator” Argument in the Pending Title VII Sexual-Orientation Cases

Linda Greenhouse on The Oath and the Office

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Saturday, September 28, 2019

The 2018 Seegers Lecture: Emoluments and President Trump

John Mikhail

Emoluments are back in the news, as Donald Trump’s conversation with Volodymyr Zelensky confirmed what every foreign diplomat in Washington understands: relations with the United States must now confront the reality of a cash register presidency. The timing of this latest revelation coincides with the publication of my 2018 Seegers Lecture, which is now posted to SSRN. In addition to discussing the three lawsuits against President Trump still pending in federal courts, I used this opportunity to publish some of my Balkinization posts on emoluments over the past few years (see, e.g., here, here, here, and here), as well as some new research on this topic. Here is the abstract:

The topic of my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this expanded version of those remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president currently making their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact these cases. Finally, I discuss the landmark decision by a federal district court in July 2018, which held that “emolument” is a broad term referring to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on similar grounds, setting the stage for what seems likely to be a pivotal issue on appeal or in any impeachment proceedings against the president. For convenience, this essay also gathers in one place every use of "emolument" in The Federalist and Blackstone's Commentaries and every definition of "emolument" in English language and legal dictionaries from 1523-1806.

Posted 11:28 AM by John Mikhail [link]

Wednesday, September 25, 2019

Admit the Bearer: Impeachment of the President (Revised and Updated)

Stephen Griffin

Here are a few historically-minded thoughts on the impeachment of President Trump. When impeachments start, we naturally search the Constitution and the practices of Congress for guidance. But in my estimation, presidential impeachments are so rare that they cannot be effectively institutionalized within a constitutional order. Each time, each branch starts over. Aside from the constitutional standard of “high crimes and misdemeanors” and the voting rules, the sequence of proceeding from House to Senate, there are no set procedures. That reality creates opportunities and dangers for Speaker Pelosi and House Democrats.

I have an article coming out this month in the Connecticut Law Review that argues articles of impeachment tend to cluster around a criminal law model – even if they don’t directly accuse the president of having violated a specific law. They are nonetheless usually written as if they are accusing the president of crimes. But the Ukraine allegations take us into fundamentally new territory. This could be really interesting. Maybe what Trump did amounts to a campaign finance violation, but that’s not the gravamen of the impeachment. The true basis is the threat of Trump using his control over foreign policy to influence foreign prosecutors (foreign intelligence services!) to go after his domestic political opponents. So this could be the first presidential impeachment to be truly based on a non-criminal matter, something falling clearly and only into the category of an abuse of power or, as Alexander Hamilton put it, a violation of the “public trust.”

Yet we have already seen the appearance of the criminal law model in remarks by the House Minority Leader. It is worth understanding that despite this model lacking an eighteenth-century pedigree, it is fueled by two considerations. First, it is easier to gain bipartisan assent that a serious violation of a criminal law is an impeachable offense. Pursuing a non-criminal "abuse of power" charge tends to fall apart unless there is a preexisting consensus on the nature and scope of such charges. Such a consensus is lacking, especially in partisan times. And the Trump impeachment will be even more partisan than the Clinton impeachment. Already it has become apparent that to perhaps most Republicans, the House of Representatives, the institution, is not pursuing the impeachment of President Trump. Rather, the Democratic Party is impeaching President Trump. Without any shared assumptions over what constitutes an impeachable offense, the Democratic Party might as well be a private club deciding over whether to pass a resolution of disapproval. This perception will further undermine the legitimacy of the system of checks and balances.

The second consideration that at least in the past has fueled the criminal law approach is the constitutional guarantees of due process. Republicans will argue that only a criminal charge can arise to the level of seriousness required by the Constitution and also provide the specificity that can allow the president the due process of being allowed to refute the charge. Here there will likely be a race to frame the issue – Republicans on the side of a criminal law/due process framing and Democrats saying there has been a clear crossing of the line that marks abuse of power. It helps that the Ukraine allegation is one that any Democratic politician can understand and easily explain to their constituents, something that wasn’t true of the Mueller Report. Also, there’s the point that if Democrats don’t respond in some way, Trump will feel empowered and up the ante again.

In recent times, impeachment has been a task given to the House Judiciary Committee. But other institutional pathways are possible. We've already seen the House Intelligence Committee take the lead. But which Committee handles impeachment matters less than the Democrats getting some professional help in terms of experienced staff and attorneys to handle the questioning. I commented in my initial post that the House Judiciary Committee has one of the most profound partisan splits. I failed to mention that this is true of most House committees. It is likely that the impeachment-related debates on any committee will not be pretty or edifying. Without some serious course corrections as far as procedure, they will likely not build public confidence and trust in the impeachment. That’s a big danger for Democrats.

Drafting the articles of impeachment also poses challenges. For my part, I would draft articles that make it clear to any persuadable Republicans that they would have to object to Trump's behavior if it was repeated by a Democratic president. Although there appears to be no bipartisan spirit in Washington, Democrats can still frame articles of impeachment in bipartisan terms.

This presidential impeachment is also unique because it is the first to occur in the president's first term. The shadow of the 2020 election will loom large. I could imagine an Andrew Johnson solution to Trump’s predicament, perhaps brokered by Senate Republicans. Johnson avoided conviction in the Senate at least in part because he communicated that he would not further oppose its Reconstruction policy. Similarly, as part of an effort to avoid a Senate trial, Trump could promise (amazing that we even have to think about this) not to solicit or leverage foreign governments for political gain. Of course, Democrats will have trouble believing him, but if the promise is perhaps accompanied by new legislation to the same effect, there might be room for a deal.

One more thought -- in the Johnson and Clinton impeachments, the president came up with a defense team that arguably outmatched the House managers in the Senate trial (Nixon's lawyers might have been good, but they were hobbled by the fact that they were kept in the dark by their client). The same thing could happen this time unless Speaker Pelosi is careful to pick the most able lawyers in the House.

Posted 9:17 AM by Stephen Griffin [link]

Tuesday, September 24, 2019

Judicial Review Comes to Britain

Gerard N. Magliocca

The UK Supreme Court's holding today that the Prime Minister's prorogation of Parliament was unlawful is a watershed for the British Constitution. In this decision and its 2017 ruling that Brexit must be approved by Parliament, the courts have adopted a form of "representation-reinforcement" theory. What I mean by that is that the Court is not invalidating acts of Parliament as unconstitutional. Instead, the decisions are defending parliamentary sovereignty by turning the unwritten constitutional conventions of Britain into judicial doctrine. As the Court explained today:

For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.

One can see a path, though, to the expansion of these precedents someday to an actual invalidation of an Act of Parliament that in some sense can be said to frustrate the ability of Parliament to carry out its constitutional functions. Perhaps not in my lifetime, but the foundation is there.

These decisions also illustrate the practical point that constitutional limits on government power come when a government (or a crucial part of government) is weak. The barons wrested Magna Carta from King John because he was unpopular and needed money to fight a foreign war. The American Presidency was placed under greater restrictions during and after Watergate because President Nixon was highly unpopular. Now a minority government in Britain is being mauled by the courts.

Posted 10:51 AM by Gerard N. Magliocca [link] (83) comments

Thursday, September 19, 2019

Testing the Judicial Capacity Model

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Mariah Zeisberg

I’m rather critical of Andrew Coan’s Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press).

I find it theoretically and empirically underdeveloped. Its underdevelopment may actually be helpful in assuring it some measure of impact. What I call underdevelopment, others might call elegant simplicity. But I found the book less useful than I had been hoping.

The work’s strengths include the value of articulating a “capacity model,” its development of two hypotheses from that model, and its articulation of tensions and convergences between the “capacity model” and the attitudinalist and strategic models of Supreme Court decisionmaking. Its weaknesses include that its tests are not rigorous, its relatively superficial engagement with legal theory, and its replication of some legalist stereotypes that positive social science really needs to take up systematically.

I’ll speak first to the theoretical development of the model itself. Coan’s basic idea is that the Supreme Court is concerned with managing its workflow in a context of adherence to certain bedrock norms. When discussing the meaning of capacity, he uses an appealing budget comparison; in Coan’s analysis, as some domains of law ‘open up’ for litigation, others must restrict, in order for the Court to maintain its commitments to professionalism.

Although he asserts otherwise, the author must know that a great deal of work explores the question of judicial capacity both positively and normatively. He cites much of it. I’ll focus on three important examples: Lawrence Sager’s Justice in Plainclothes (a normative theory of constitutional decisionmaking entirely premised on the Supreme Court’s necessary underenforcement of the Constitution); Gerald Rosenberg’s The Hollow Hope (a canonical work of social science that explores the conditions under which the Court does, and does not, overcome its capacity constraints); and, most canonical of all, Alexander Bickel’s The Least Dangerous Branch, a capacity argument premised on tropes about judicial passivity drawn from the Federalist Papers. These three texts are themselves embedded in vast fields of literature which extend, challenge, and engage their premises, and those literatures are a resource for anyone trying to develop a “capacity model.” Why the author does not make use of these resources beyond citing them is mysterious. The book states that no legal theorist and no positivist inquiry has been conducted on the question of judicial capacity, and this claim is false.

Neglecting these literatures limits the book. For example, Coan neglects other hypotheses that the “capacity model” is associated with. Consider Bickel’s recommendation that a Court concerned with capacity should decide cases on narrow grounds rather than broad ones, and that it should time its interventions in a way that is sensitive to politics unfolding in other branches (in order to not replicate or displace their work). This recommendation can certainly generate testable hypotheses. Gerald Rosenberg’s work generates a hypothesis that Courts concerned with capacity should time their major interventions in ways that are supported, rather than blocked, by the other branches. Otherwise, he says, Courts will be overwhelmed with the litigation that is produced as legal norms are invited into lonely combat with entrenched social and political forces. This is essentially his argument about Brown v. Board of Education. Rosenberg also argues for a different way of understanding “capacity” – not only in terms of ongoing litigation, but also in terms of ability to enforce the outcomes they generate. If capacity means enforcement of legal rulings, then this perspective would generate a hypothesis that capacity-concerned Courts should be more likely to offer controversial rulings in areas that don’t require the participation of other branches, for example criminal procedure, rather than, say, equal protection.

Posted 8:30 AM by Guest Blogger [link]

Monday, September 16, 2019

Normative Constitutional Scholarship meets Judicial Capacity

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Victoria Nourse

Andrew Coan has written a great book with a strong, powerful idea. Many constitutionalists of contemporary standing have never written a book so thoroughly focused and entirely theoretical (apologies to the readers who think that they have). Coan’s idea sounds boring: he calls it “judicial capacity.” But it offers exciting potential: its explanatory effect could outstrip either the increasingly-outdated, but ever-resilient, attitudinal model as well as strategic models (positive political theory) of judicial decisionmaking. More importantly, this model actually explains the rough (emphasis on rough) shape of constitutional doctrine, over a broad set of cases, something neither of those models do.

Coan argues that in high capacity domains (lots of cases) courts will seek to manage those domains. Coan claims the very smallness of the institution, and norms which celebrate the virtues of smallness (high quality judicial resolution), coupled with hierarchy, lead toward certain kinds of doctrinal behavior: constitutional law’s preference for hard-edged rules on the one hand and/or high deference to political actors on the other. That, in turn, explains a good bit of the caselaw taught in constitutional law courses, from the separation of powers to the commerce clause to the equal protection clause. For the details, read the book, but a good bit of it will sound convincing to those who teach constitutional law.

I suspect that the biggest pushback will come from the resilient normativity of constitutional practice and scholarship. Compare Coan’s book with two others, of recent vintage, and more traditional within the constitutional normative tradition: Erwin Chemerinsky’s Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable (2017) and Jim Pfander’s Constitutional Torts and the War on Terror (2017). Both are extraordinarily well written pleas that the modern federal courts have simply shut themselves down in the face of rather egregious constitutional failures. Each presents erudite arguments that these modern failures have no historical antecedents, or at least mixed ones, and claims that we cannot see these failures because courts have hidden them in arcane procedural devices, from habeas corpus to clear statement rules.

If Coan is right, what has happened in the world of constitutional torts (Pfander) and judicial access (Chemerinsky) is entirely predictable. Why? Judicial capacity. Courts create circular rules like “clearly established law,” in qualified immunity cases or higher pleading standards in civil or habeas cases to reduce courts’ caseload. Constitutional torts are a good example because they literally cover every government actor—the “high judicial capacity” domain that Coan targets. The obvious question then is this: If Coan could have predicted that courts would create a highly deferential bright line standard, in Pfander’s case, or closed the courthouse door, in Chemerinsky’s, what role should normative scholarship play? I suspect that Coan would answer that critics of constitutional doctrine would be better off tailoring their normative complaints, and proposed solutions, to the limits of judicial capacity. But would Chemerinsky or Pfander agree? I wonder.

Posted 9:00 AM by Guest Blogger [link]

Saturday, September 14, 2019

Is the Constitution a Power of Attorney? A Commentary on Lawson and Seidman

John Mikhail

In April 2018, the Georgetown Center for the Constitution awarded its first Thomas M. Cooley Book Prize of $50,000 to Professors Gary Lawson and Guy Seidman for their book, ‘A Great Power of Attorney’: Understanding the Fiduciary Constitution (Kansas University Press, 2017). To celebrate the book and its authors, the Center held a symposium at Georgetown that featured critical responses to A Great Power of Attorney by Ethan Leib and Jed Shugerman, Richard Primus, Suzanna Sherry, and myself. The collected papers, together with a reply from Lawson and Seidman, will be published in The Georgetown Journal of Law & Public Policy.

My contribution to the symposium is now posted to SSRN. It consists of a detailed refutation of the main originalist thesis of A Great Power of Attorney, along with the conditional defense of a competing claim Lawson and Seidman reject: that the Constitution is best understood as a corporate charter.

I refer to this defense as “conditional” because it is meant to be an answer to an if-then question. If one seeks to classify the Constitution in terms of familiar eighteenth-century legal categories – for example, as a contract, trust, power of attorney, or corporate charter – then which category seems most appropriate? My answer is that the Constitution is most appropriately characterized, not as a power of attorney, but as a corporate charter.

Of course, one might reasonably wonder whether this enterprise of characterizing the Constitution in terms of other legal categories is misguided. The Constitution is what it is, after all, not some other thing. In my commentary, I do not consider this wholesale rejection of Lawson and Seidman’s project of categorizing the Constitution. Instead, I engage with their project on its own terms and argue that the Constitution is better understood as a corporate charter than as a power of attorney.

What turns on this disagreement? Principally, the extent of government power. As Suzanna Sherry observes in her contribution to the symposium, one main impetus of A Great Power of Attorney appears to be defending a narrow theory of government power on originalist grounds. Equating the Constitution with a power of attorney lends itself to this deregulatory, small-government vision. By contrast, characterizing the Constitution as a corporate charter supports a more robust understanding of government power, for at least two reasons. First, as Lawson and Seidman explain, corporate charters are supposed to receive the most favorable possible interpretation to effectuate their purposes. Second, the corporate charter conception of the Constitution implies that the Government of the United States is vested with the power to fulfill every purpose for which that government was formed, including the six great objects enumerated in the Preamble. This was the progressive vision of the Constitution advanced Franklin D. Roosevelt, who maintained that the national government had the power to promote the general welfare. It also was the constitutional theory embraced by Benjamin Franklin when, in his last public act, he petitioned Congress to abolish slavery. As Jonathan Gienapp, Richard Primus, and David Schwartz have recently shown, similar appeals to implied powers, grounded in the Preamble and Necessary and Proper Clause, were used throughout the founding era, particularly in connection with the Bank of the United States. Yet this progressive vision of the Constitution is hardly congenial to Lawson and Seidman, who have labored diligently for many years to defend a much narrower conception of government power.

Posted 3:20 PM by John Mikhail [link]

Judicial Capacities: Some Second-Order Problems

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Adrian Vermeule

Andrew Coan’s book develops seamlessly out of a venerable line of work that considers constitutional theory, and legal theory generally, in light of the capacities of judges and the resource constraints under which they labor, especially constraints of time, attention, information, and political capital.^{^[1]} Coan makes a tangible advance as well, offering a specific informal model of the Court’s decisionmaking capacity. He does an admirable job of keeping his categories clear, with only the necessary minimum of jargon and theoretical scaffolding. Thus the book consistently, if implicitly, distinguishes the very different problems of institutional choice, on the one hand, and interpretive choice or the design of legal rules, on the other. The former is the allocation of tasks among the institutions of the constitutional order, the “who decides” question. The latter is the choice of principles for executing those tasks, including interpretation and the design of legal rules, conditional on some institutional allocation of jurisdiction - the “how to decide” question. On the latter question, Coan consistently makes highly plausible points about how courts do and, assuming certain welfare functions, should craft legal norms in light of budgetary constraints, both literal and metaphorical. The result is a book that contributes, from a constitutional lawyer’s perspective, to the institutional literature on the rationing of justice under scarcity.

Given that what is in the book seems to me generally admirable, clear and correct, I will supplement and complicate its analysis by mentioning some second-order complexities about the idea of rationing judicial capacities. What results are mechanisms, not laws — causal processes that operate under some conditions but not others, perhaps in ways that are difficult to predict before the fact. As we will see, that very uncertainty makes these mechanisms consequential.

Posted 9:00 AM by Guest Blogger [link]

Friday, September 13, 2019

Joan Biskupic is Asking the Wrong Question

Gerard N. Magliocca

In a recent article, Joan Biskupic (citing anonymous Supreme Court sources) writes that Chief Justice Roberts changed his position after conference in the census case. While there is not much detail in the story, the basics are reminiscent of similar claims that the Chief Justice changed his position after conference in NFIB v. Sebelius. Why did he switch? That's what she would like to know.

I think there is far more interesting question that she does not ask. It's about the premise that there is something wrong about a judge changing his or her initial vote in a case. I know of no reason to think that there is something wrong about that. What would be wrong is for a judge to never change his or her initial vote after seeing the draft opinions. But a story titled, "Justice X never changes her mind after oral argument" will probably never be written.

Posted 8:30 PM by Gerard N. Magliocca [link] (44) comments

Call for Papers -- ACS Public Law Workshop @ AALS 2020

Joseph Fishkin

ACS will run a workshop for junior scholars writing in public law on January 3, 2020 at the AALS annual meeting in Washington DC.

If you are a new-ish law professor (10 years or less in a tenure-track job) and you have a paper in "any field related to public law, including but not limited to: constitutional law, administrative law, legislation, antidiscrimination law, criminal law, election law, environmental law, family law, federal courts, financial regulation, health law, public international law, social welfare law, and workplace law," then please consider submitting it to us! More from the announcement:

A committee composed of members of ACS’s Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler, among others.

More details here. The deadline is October 18.

Posted 5:33 PM by Joseph Fishkin [link]

Methodological Quibbles and Their Non-Quibbly Implications

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Frederick Schauer

Andrew Coan’s important book[i] on the limits of the Supreme Court’s decision-making capacity is built on three foundational points, all of which are correct. First is that the Supreme Court’s overall policy and political importance and salience are often 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 important health care questions, for example, are being resolved (or not) legislatively, politically, and administratively rather than judicially. The same applies to immigration, where what the Supreme Court has does is not nearly as consequential as a host of executive, political, and administrative decisions. And when we move to tariffs, climate change, relations with Israel and Iran and China, treatment of victims of sexual violence and sexual harassment, monetary policy, opioids, and the size of the American military presence abroad, for example, the gap is even greater. And just as most of the important political and policy issues overlap only loosely with the Court’s business, so too is most of what the Court does – even on questions of abortion, sexual orientation, and religion – located well down on the list of what the sophisticated polling data indicate are the public issues that Americans think most important.

Coan’s second point is that crisply formulated rules, including those emanating from the courts, can forestall litigation. Jeremy Bentham recognized the litigation-stifling character of clear rules more than two centuries ago,[iii] and although Bentham was motivated far more by revulsion of the courts than recognition of their limited capacity, he, like Coan, understood that litigation is typically prompted by the indeterminacy of the governing law. And thus if a legislature (for Bentham, and for the Napoleon of the Napoleonic Code) or the Supreme Court (for Coan) sets forth precise and easily understood conduct rules, the domain of dispute and thus of judicial dispute resolution is contracted.

Third, and relatedly, Coan demonstrates that doctrines of judicial deference to decisions of other branches or institutions may also reduce the scope of judicial power and the degree of judicial involvement with questions of policy. Whenever a court adopts highly deferential standards of review – rational basis and abuse of discretion being obvious examples, and Coan usefully catalogs others – it makes its own job smaller.

But although Coan is correct in identifying and documenting these phenomena, the heart of his book lies in his claim that the limitations of judicial capacity in general, and Supreme Court capacity in particular, play a substantial role in explaining why the Court leaves so many important issues aside, why it formulates sharp-edged rules of conduct, and why it so often adopts deferential standard of review. But although Coan accurately describes the limited capacity of the Supreme Court, a capacity that would remain highly limited even if the Court reverted to its earlier practice of deciding roughly 150 cases a year rather than the current 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 and political agenda, assuming (correctly) that the Court often defers to other branches and other institutions, and assuming (less obviously correctly[iv]) that the Court often formulates crisp rules of conduct, the question is whether these practices are the consequence of the Court’s limited decision-making capacity.

Posted 9:00 AM by Guest Blogger [link]

Thursday, September 12, 2019

Judicial Norms and Judicial Capacity

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Aziz Huq

Andrew Coan is not just a terrific scholar—a quick perusal of “Rationing the Constitution” confirms that—he is also a pillar of the scholarly community in American constitutional law. As organizer of the only field-wide constitutional law event, held every winter in Tucson, he has innovated and thereby made a substantial contribution to the field. (I should disclose that he has twice invited me as commentator. I’ve profited much on both occasions from the debate and papers, but hope to ignore that generosity in the response that follows).

Coan’s design of the Tucson conferences provides a useful counterpoint to the account of judicial review offered in “Rationing the Constitution.” The first offers an ecumenical and diverse perspective on many constitutional questions. The latter, called the judicial capacity account, explains why we see the Court using only a small part of “the constitutional choice set” (p.165), i.e., the set of all possible extrusions of constitutional prohibitions and mandates via a selection among all potential doctrinal specifications. On Coan’s reading, judicial constraint arises from the Justices’ commitment to certain norms of professionalism, uniformity, and “timely and efficient access” to adjudication (pp.14-16). These norms help explain 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 account of constitutional review is causally distinct from the legalist, attitudinal, and strategic models of judicial behavior that dominate academic literature now.

A churlish reduction of Coan’s thesis would be a simple tautology: “the Court does only what it can do.” The account’s richness and utility, however, springs from its identification of norms respecting Supreme Court adjudication as the source of constraint (p.158). It thus stands or falls on the extent that these norms can do load-bearing analytic work. Although there is much that is new, important, and valuable in Coan’s theory, I cannot shake qualms. Some pertain to his account of when the Court experiences a capacity constraint. The more querulous, though, dog his assumption that norms can do the needful explanatory work.

I start with some comments about the ways in which Coan suggests that adjudication of a discrete legal issue can generate capacity ‘bite.’ He sketches two. The first is that it is of such high volume that “no procedural recalibration or shifting of resources from other areas could possibly stem the tide” (p.25) The second is that an issue is of such high stakes that the Court “is much less willing to tolerate disuniformity” such that the “significant demand” on the Court’s attention will “very quickly produce 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 as a check on judicial action.

To begin with, I am not sure “high volume” and “high stakes” are separate categories. There is no “pure” case, Coan notes, of the latter (p.29). In practice, he invariably stresses the “enormous volume” of cases as a dispositive factor (p.110). Occam’s razor might have been wielded here to good effect.

Posted 9:00 AM by Guest Blogger [link]

Wednesday, September 11, 2019

Andrew Coan and Legal Process

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Maggie Blackhawk

In Rationing the Constitution, Andrew Coan offers the kind of brilliant thesis that becomes obvious the moment of its utterance: the capacity of the Supreme Court as an institution has affected constitutional doctrine. According to Coan, there are areas of constitutional law that are so “high-stakes” and “high-volume” [23] that the Supreme Court will either defer to the political branches or fashion blunt categorical rules in order to stem the overwhelming tide of litigation. Coan terms his theory the “judicial capacity model” [19] and spends two hundred pages vigorously proving the superiority of his novel model over the two prevailing models of judicial decision making—ideology and formalism, referred to as “attitudinal” and “legalist,” respectively. [81]

Coan’s contribution is both valid and valuable: judicial capacity matters to judicial decision making and lawyers should take note. His text is crafted with the clarity of an analytic philosopher. But it left me wondering how much the legal academy has lost by refusing to recognize and build upon its intellectual ancestors.

Scholars of the law often see themselves as intellectual orphans. Other disciplines have mentors, literatures, and scholarly genealogies. Legal scholars recognize no disciplinary masters. To engage with theories past is to destroy them and make way for the new. Novelty is king.

There are times when this perspective lends itself to better scholarship. Paradigm shifts have fewer entrenched presuppositions to unsettle. Inaccuracies might be more quickly corrected. But there are also times when the aversion to building on earlier work makes theorization more difficult.

Although not mentioned in the book, Coan’s judicial capacity model is an important refinement of Hart and Sacks’ Legal Process Theory.[1] Hart and Sacks, like Coan, envisioned lawmaking institutions as distinctive in their characteristics and all agree that those distinctions matter for the way law is made. They recognized that each institution—judicial, legislative, administrative, and private—varied in its composition and they recommended that jurisdiction be allocated by the competence of each institution.[2] Legal Process Theory was an effort to chart a middle ground between the Legal Realist position that law was politics all the way down and the Legal Formalist position that law consisted entirely of legal texts. According to Hart and Sacks, politics and legal texts may matter, but institutions matter also. Mirroring Hart and Sacks, Coan shapes his entire project in terms of institutions, political ideology, and legal formalism.

Legal Process Theory remains a vibrant aspect of legal scholarship. As Bill Eskridge and the late Phil Frickey observed in the early nineties, “new positive theories of political institutions are finding their way into public law” due to a renaissance of Legal Process Theory.[3] Coan’s “judicial capacity model” offers another such positive theory of lawmaking institutions. It is unsurprising that Coan’s work draws so heavily on Hart and Sacks, given their deep impact on his field. Federal Courts, like legislation, is the rare field to carry on the Legal Process tradition explicitly.[4]

But my review offers more than a celebration of Rationing the Constitution’s conclusions and a critique of its citation practices. A deeper engagement with Legal Process Theory would add nuance and refinement to Coan’s model.

Posted 9:30 AM by Guest Blogger [link]

Tuesday, September 10, 2019

Rationing the Constitution: Beyond and Below

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Aaron-Andrew P. Bruhl

In Rationing the Constitution, Andrew Coan presents a judicial-capacity model of the Supreme Court’s behavior. The model starts from the unremarkable premise that the Supreme Court can decide only a limited number of cases. The Court’s capacity constraints come from material limits (budget, staff, etc.) and, more importantly in Coan’s telling, from norms of professionalism that deter the Justices from taking on cases at a rate that would compromise the quality and craft of the Court’s opinions. The other important underpinning of the judicial-capacity model, besides the fact of constrained capacity, is the observation that the Court’s limited capacity does not matter in every doctrinal space, but rather the constraints bite in what Coan calls “capacity-constrained domains.” Those are domains that feature high volumes of litigation or high stakes or, especially, both. High-stakes cases, for these purposes, are those in which the Supreme Court would feel compelled to grant certiorari, most paradigmatically cases that strike down federal statutes as unconstitutional.

The above might not sound like much of a foundation upon which to build an interesting theory of judicial behavior, but Coan shows that judicial capacity is an important determinant of the content of constitutional doctrine. In particular, the judicial-capacity model predicts that in capacity-constrained domains the Court will have to either retreat from the scene by announcing doctrines of deference to the political branches or employ clumsy categorical rules that may have little first-best merit but at least prove easy for the lower courts to apply in a uniform way. The heart of the book is a series of case studies applying the model in fields ranging from the nondelegation doctrine to equal protection to federalism. The book is a very welcome contribution to the field of institutionalist approaches to courts, for it provides an account of how doctrine is shaped not only by the law’s own internal logic but in which, contra the attitudinalists, doctrine is not merely the product of the Justices’ political preferences either. Coan’s valuable contribution is to show the influence of a neglected form of institutional constraint.

I am largely persuaded that Coan’s judicial-capacity model describes and explains at least a meaningful amount of the Supreme Court’s behavior. Just how far it succeeds is largely an empirical question. In the remainder of this review, I sketch out three new case studies drawn from the Court’s October 2018 Term. The topics I have selected provide additional tests for the capacity model and, more importantly, suggest some elaborations on the basic model or highlight other interesting features of it.

Posted 9:00 AM by Guest Blogger [link]

Monday, September 09, 2019

Comments on Rationing the Constitution

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

David Marcus

Andy Coan’s Rationing the Constitution is remarkable. He constructs a revelatory account of a broad swath of constitutional doctrine out of just a couple of building blocks. These blocks include the Supreme Court’s commitments (1) to minimum professional standards and (2) to some modicum of uniformity in federal law. That’s it. No observer of the Court’s work could plausibly doubt that these commitments exist. From this deceptively simple start, Prof. Coan develops a theory about the Supreme Court’s work product that will transform constitutional law scholarship.

It’s impossible to summarize Prof. Coan’s elegant argument in a paragraph, so I will succeed if the following crude summary whets the reader’s appetite for his book. The Court’s dual commitments constrain the Court’s options for doctrinal design when it decides how to govern litigation involving the constitutionality of federal law. The Court can choose between hard-edged, sometimes blunt rules (e.g., Congress cannot use its Commerce Clause power to regulate inactivity) or deference (e.g., the toothless Nondelegation Doctrine) when it shapes law for these domains. Both options dissuade litigation. Deference renders litigation futile, and hard-edged rules make outcomes obvious ex ante. By contrast, more nuanced doctrinal governance would muddy the judicial review waters. Plaintiffs would test these waters much more often, creating an onslaught of high stakes litigation that would imperil the Court’s commitment to professional standards as it decides cases.

Judicial capacity, it turns out, is doctrinal destiny. To those who would question the theory behind Prof. Coan’s “judicial capacity” model, he answers with an exhaustive empirical case. His masterful tour d’horizon unveils deep underlying similarities in doctrinal design from one area of constitutional law to the next. It explains persuasively how the Court’s constrained capacity best explains these patterns.

Rationing the Constitution is the work of a master of his field. I thus offer two reactions with a good deal of humility. One is more in the vein of speculation, and the other a very modest critique.

Posted 9:30 AM by Guest Blogger [link]

Introduction to Balkinization Symposium on Andrew Coan, Rationing the Constitution

This week and next on Balkinization we will be hosting a symposium on Andrew Coan's book, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

We have assembled a terrific group of commentators, including Maggie Blackhawk (Penn), Aaron Bruhl (William and Mary), Aziz Huq (Chicago), David Marcus (UCLA), Victoria Nourse (Georgetown), Fred Schauer (Virginia), Adrian Vermeule (Harvard), and Mariah Zeisberg (Michigan)

At the conclusion, Andrew will respond to the commentators.

Posted 9:05 AM by JB [link]

Friday, September 06, 2019

Thoughts on the SG’s “Lesbian Comparator” Argument in the Pending Title VII Sexual-Orientation Cases

Marty Lederman

In a pair of cases that’ll be argued on October 8th—Bostock v. Clayton County, Georgia, No. 17-1618, and Altitude Express, Inc. v. Zarda, No. 17-1623—the Supreme Court will consider whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits that employer from firing an employee because he’s a gay man.

The defendant employers and the Solicitor General recently filed their briefs arguing that there’s no Title VII liability in these cases. Those briefs frame the issue in a particular, familiar way: They assume that the Court’s decision depends upon whether it would violate Title VII for an employer to implement a policy that categorically excludes all persons with same-sex orientation, gay men and lesbians alike, from the workforce—as though the cases involve what a couple of court of appeals judges (Judge Lynch in the Second Circuit and Judge Sykes in the Seventh Circuit) described as employers who “insist[] that [their] employees match the dominant sexual orientation regardless of their sex” and therefore hire “only heterosexual employees.”

As I’ll explain in Parts IV and V of this post, I think such a categorical “heterosexuals only need apply” policy would violate Title VII, even if it equally affected gay men and lesbians alike. Before getting to that discussion, however, in Part III I explain why this common framing of the question—based on a hypothetical employer who believes that homosexuality as such is immoral and thus won’t employ gay men or lesbians—is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation. In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men--something the plaintiffs will have to establish--it's not at all obvious that they would have fired similarly situated lesbians, too. Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don't have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce: such a policy or open and notorious practice would be foolhardy, if not economically disastrous (not to mention morally odious) for almost employers.

Once this crucial point is acknowledged—namely, that there’s no reason to believe these employers would have treated lesbian employees the way they (allegedly) treated the gay male plaintiffs—that ought to resolve the Title VII question, because both the Solicitor General and the defendants themselves concede that even if Congress didn’t intend to prohibit discrimination based upon sexual orientation, as such, it is a form of prohibited sex discrimination for a covered employer to treat a gay man less favorably than the employer would have treated a similarly situated lesbian (or vice versa).

Posted 8:08 AM by Marty Lederman [link]

Sunday, September 01, 2019

Linda Greenhouse on The Oath and the Office

Corey Brettschneider

Linda Greenhouse reviews The Oath and The Office in the New York Review of Books, alongside Josh Matz and Lawrence Tribe's To End a Presidency, as well as Cass Sunstein's Impeachment. Here is an excerpt:

Maybe, after more than two years of President Trump, what we need more than anything is a collective reminder of what we have a right to expect from the occupant of the White House—how a president should behave and what the presidency should be. In that vein, I end this essay by recommending a book that has received too little attention since its publication last year. It’s not an impeachment book. In fact, it’s a how-to-avoid-impeachment book by a political scientist at Brown University, Corey Brettschneider.

He has written The Oath and the Office: A Guide to the Constitution for Future Presidents as an extended memo to anyone who might be considering a run for the White House. It has chapters about the powers the Constitution bestows on the president as well as on the constraints it imposes. Where have presidents gone wrong, and where have they lived up to the Constitution’s ideals? Brettschneider hands his hypothetical candidate a challenge that should speak to all of us. “As president,” he writes,

"you will be constrained by these legal dynamics of the Constitution. But far more integral to your presidency is something else: the Constitution’s political morality. By this, I mean the values of freedom and equality that inform the document beyond its judicially enforceable requirements. We can tell whether presidents embrace the Constitution’s values not just by their executive orders or official appointments, but by how they speak to the American people. No court can tell you what to say. But you still must be guided by the Constitution in this crucial endeavor. As president, you should speak for all of us—and more, you should speak for what our country stands for, and aspires to be."

https://www.nybooks.com/articles/2019/06/27/mueller-trump-impeachment-question/