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 law.upenn.edu
[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).