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. 

First, I wonder if an increasingly untenable assumption lies behind the justices’ willingness to acquiesce to constraints on judicial capacity when they craft constitutional law for high stakes domains.  The assumption is that Congress is the primary actor in national policymaking.  As Prof. Coan argues, the Court uses blunt rules to place modest areas of legislative terrain out of Congress’s reach.  Otherwise, it defers, leaving Congress a good deal of legislative ground on which it can roam. 

This situation surely concerns those about the formal scope of Congress’s power.  But ultimately the legitimacy of the Court’s choice to leave Congress relatively unconstrained finds support in a set of structural safeguards.  Bicameralism and presentment require legislation to pass through multiple veto-gates and (usually) to win the acquiescence of two branches.  These hurdles ensure that when the Court ultimately defers, it rarely endorses a genuine abuse of power.  This fact might assuage a justice otherwise tempted to craft more nuanced doctrine for judicial review. 

Almost all of Prof. Coan’s examples are cases plaintiffs brought to challenge federal legislation.  But judicial review going forward may increasingly involve a different type of national policymaking.  Legislative paralysis, political partisanship, and other forces have sidelined Congress in important fields, leaving the President to occupy them.  Immigration reform, for instance, has completely flummoxed Congress, while both Presidents Obama and Trump have left sizeable imprints on the contours and administration of immigration law and policy. 

If judicial capacity leaves the Court similarly constrained in its review of executive orders and agency policies, the results are more concerning.  An executive order requires nothing more than the President’s signature.  An agency rule demands a more protracted exercise, usually notice-and-comment, before its promulgation.  But federal agencies in important instances have found shortcuts.  Compared with bicameralism and presentment, the structural barriers to the abuse of power are much more modest, to the extent they exist at all. 

The threat of unchecked power looms when the executive acts unilaterally.  Will a justice confronted with this situation acquiesce to capacity constraints as readily as the Court has done when reviewing legislation?  Or will a justice, concerned for the Court’s legitimacy in a government increasingly dominated by the President, risk the avalanche of litigation that comes with more nuanced, searching review?  At some point, do the costs occasioned by an endorsement of a President’s abuse of power weigh more heavily in a justice’s mind than the costs of departures from commitments to minimum professional standards and uniformity?  More abstractly, to what extent have the Court’s constrained choices in doctrinal design traded on a reservoir of legitimacy that a polarized government saddled with a sclerotic Congress might quickly drain?    

My second reaction is a very modest critique.  For the most part, Prof. Coan makes clear that his account explains doctrinal design choices at the Supreme Court.  Here and there, however, he hints that his subject entails the power of the federal judiciary as a whole, not just the Court’s.  In the first chapter, for instance, Prof. Coan questions why critics of “government by judiciary” have done “very little work exploring why the judiciary has such limited capacity” (my emphasis).  Elsewhere he insists that his model “has important implications for the power and limits of the court as a vehicle for social reform” (my emphasis). 

These assertions are perplexing at first blush.  The Court may be limited to 150-200 full-dress decisions per year, as Prof. Coan asserts, but the entire federal bench can render thousands more without testing its commitment to minimum professional standards.  Here, of course, is where the Court’s stewardship of federal law comes into play.  The Court will ultimately review any decision invalidating federal legislation, either craft a hard-edged rule or insist on deference for future cases, and thereby cabin the power of all of the federal courts going forward.  As Professor Coan argues, “the limited capacity of” the Court ultimately “constrains the capacity of the federal judiciary as a whole.”

But a lot – perhaps the weight of – social reform litigation in the federal courts has not attracted intense Supreme Court supervision, and lower federal courts manage and adjudicate it with relative freedom.  Many assume that the great era of this litigation has lapsed.  My research into patterns of lawsuits against government defendants for large-scale injunctive relief has persuaded me that this declensionist story is inaccurate in key respects.  Components of dozens of state prison systems remain under federal judicial supervision.  In recent decades, litigants have successfully sued dozens of state and city foster care agencies, winning broad injunctive remedies for tens of thousands of children.  Federal judges play key roles in the administration of disability policy in cities across the country.  Judges’ interventions to reform police practices are equally significant and numerous.  New litigation campaigns – the latest, a series of successful lawsuits to dismantle money bail systems and other types of court debt – surface regularly.

The substance of the doctrine that federal courts wield when they decide prisoners’ rights, foster care reform, disabilities, and other such cases looks nothing like the doctrine the Supreme Court designs for the domains Prof. Coan describes.  Substantive due process doctrine crafted by the Supreme Court may involve a combination of categorical rules and deference (p. 114).  But there is a lot more nuance and flexibility in the body of substantive due process law the lower courts have assembled as they have decided challenges to foster care systems.  The Eighth Amendment has similarly spawned flexible standards that courts apply as they determine whether prison overcrowding or substandard healthcare falls below a constitutional floor.

This doctrinal landscape poses no challenge to the judicial capacity model.  The vast majority of social reform lawsuits target state and local governments and involve programs that differ from jurisdiction-to-jurisdiction.  This litigation does not fall within the domains that require intensive Court supervision.  The Court can tolerate doctrinal mushiness and whatever volume of litigation it invites when a lawsuit successfully challenges the constitutionality of state law or local government policy administration.  Moreover, other constraints, including most importantly limits on litigation financing, keep the volume of this sort of litigation in check.

The Court’s jurisprudence of public law remedies reflects its willingness to leave this litigation to the lower courts.  The Court has only decided a couple of these cases this century.  By far the most significant is Brown v. Plata.  There, the majority endorsed a remarkable exercise of district court authority, rooted in a vague Eighth Amendment deliberate indifference standard, over California’s prison system.        

While consistent with this pattern of social reform litigation, the judicial capacity model does not support sweeping intimations about the limits of federal judicial power that surface here and there in Rationing the Constitution.  Surely the Court’s capacity constrains some types of social reform litigation.  For instance, capacity constraints probably account for the marginal success that the libertarian assault on the federal administrative state has enjoyed to date.  But a lot of social reform litigation flies under the Court’s radar.  Its limited capacity does not foreordain the lower courts’ weakness.

Again, this critique is modest.  The sort of social reform litigation I have in mind only deepens my conviction that Prof. Coan has the story of doctrinal design at the Supreme Court exactly right.

David Marcus is Professor of Law at UCLA School of Law. You can reach him by e-mail at marcus at

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