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.

First, it would refine the judicial capacity model to take account of other lawmaking institutions.  Unlike Hart and Sacks, who envisioned lawmaking as a dynamic relationship between institutions, the judicial capacity model often overlooks the roles and functions of the other branches in the lawmaking process.  For example, Coan offers as support for his model the fact that categorical bans—on spending clause legislation, delegation, and the like—would “threaten such a large mass of federal legislation as to almost certainly bury the Court under an avalanche of litigation” that the Court lacks the judicial capacity to enact such a ban.  [87]  Although there are points in the text where Coan does gesture toward the reaction of the other branches,[5] [154] he more often overlooks the fact that a politically aligned Congress or administration could rely on the Court’s decision to simply repeal the legislation.  Coordination between the branches could avoid an “avalanche of litigation” and essentially expand the capacity of the Court.  A growing body of scholarship on administrative and legislative constitutionalism has recognized that the Court is not the only lawmaking institution involved in constitutional law.[6]    

Second, it would offer explanations for expansions into “high stakes” and “high volume” areas.  Rather that providing an explanation within the model, Coan asserts by implication that these expansions are rare.  He offers the exactions doctrine as the only “counterexample” to his model and explains it away because: (1) it challenges local and state law, as opposed to federal; (2) it did not result in the large volume of litigation initially predicted; and (3) of the absence of statutory damages as incentive to bring the suit.   [159-61]  This assertion, however, raises more questions than it answers.  For example, although the Court might now cabin its equal protection doctrine to “a short list of narrow and discrete categories,” [120] the model offers little explanation for why the list of categories expanded to include gender in the 1960s and sexual orientation in the 1990s.  It similarly does not explain why the Court has, in its most recent cases, “signal[led] that the universe of suspect classes is now closed.”  [123] 

The Court’s equal protection gender doctrine poses problems for the judicial capacity model.  It is a high-stakes and high-volume area.  Unlike the exaction doctrine, it implicates challenges to federal law and the Court was quite famously put on notice of the volume of the litigation by the Department of Justice.[7]  The judicial capacity model does not yet offer an explanation for this and other potential “counterexamples.” 

But Legal Process Theory and, in particular, Eskridge and Frickey’s contribution of social movement lawmaking could provide much needed nuance to the judicial capacity model:  It could be the case that the model needs to incorporate additional strategies used by the Court to shield itself from high volume litigation.  For example, in the equal protection context the Court could have responded to social movement pressure as a safety valve:  incremental expansions might prevent interventions by the other branches that could increase litigation to an overwhelming level—such as statutory intervention like the Pregnancy Discrimination Act or constitutional reform like the Equal Rights Amendment.  Incremental expansions allow the Court to “ration the constitution” on its own terms and while considering “both the structural organization of the judiciary and certain widely shared but little discussed professional norms of American judges.”  [2]

Maggie Blackhawk is Assistant Professor of Law at the University of Pennsylvania. You can reach her by e-mail at blackhawk at

[1] See, e.g., Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); William N. Eskridge, Jr. & Philip P. Frickey, The Making of The Legal Process, 107 Harv. L. Rev. 2031 (1994).
[2] The second aim of Rationing the Constitution, as outlined by Coan, was to show that “judicial capacity’s influence on doctrine is a crucial determinant of judicial competence . . . .”  [5]
[3] Eskridge & Frickey, supra note 1, at 2053.
[4] See, e.g., Richard H. Fallon, Jr., et al., Hart and Wechsler’s the Federal Courts and the Federal System (2015); see also Richard H. Fallon, Jr., Reflections on the Hart and Weschler Paradigm, 47 Vand. L. Rev. 953 (1994); Richard H. Fallon, Jr., The Supreme Court, Habeas Corpus, and the War on Terror: An Essay on Law and Political Science, 110 Colum. L. Rev. 352 (2010); Richard H. Fallon, Jr., Why and How To Teach Federal Courts Today, 53 St. Louis U. L.J. 693 (2009).
[5] “Some of these challenges will settle and some of them will never arise because the government actors in question will modify their behavior to avoid litigation.”  [154]
[6] See generally, e.g., Sophia Z. Lee, The Workplace Constitution: From the New Deal to the New Right (2014); Mark Tushnet, Taking the Constitution Away from the Courts (1999); Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise (2016); Sotirios A. Barber & James E. Fleming, The Canon and the Constitution Outside the Courts, 17 Const. Comment. 267 (2000).
[7] Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit at 37-38, app. E, Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972) (Solicitor General’s appendix of “provisions of the United States Code containing differentiations based upon sex-related criteria”), cert. denied, 412 U.S. 906 (1973).  Then Professor Ruth Bader Ginsburg also drafted a report with her students charting 800 federal laws that drew gender classifications.  See U.S. Comm’n On Civil Rights, Sex Bias in the U.S. Code (1977).

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