Saturday, September 14, 2019

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.

     Externalities. The judges who choose doctrines are not necessarily identical to the judges who must implement them, and this creates space for the former to externalize costs onto the latter. Coan tends to run together the capacities of “the judiciary” or “the judicial system” with those of the Supreme Court. The topics are quite distinct, because of the possibility that the Court may be able to externalize part of the costs of its interpretive choices onto lower courts and the bar.

     Faced with the choice between a standard and a rule, and bracketing the question of content, the choice of a standard by the Court will tend to make more work for lower courts, who will be faced with years of ad hoc application and semi-arbitrary distinctions among cases. If the Court fully bore the resulting systematic burdens, via mandatory appellate jurisdiction, then no such externality could arise, but in fact its appellate jurisdiction is discretionary and the costs are not fully passed upwards. Some litigants never seek cert, and in any event the Court’s clerks and staff can deny almost all such petitions as factbound at low cost — or at least low cost to the Justices themselves.
     The consequence is that there will be an incentive at the margin, an incentive of uncertain magnitude, for the Court to over-produce vague standards and under-produce bright-line rules. This is in fact a not-uncommon pattern in the caselaw, and it was a leitmotif of Justice Scalia’s jurisprudence of rules to object to this pattern, on the ground that vague standards externalize costs of uncertainty onto litigants and lower courts. Coan rightly notes that a check on opportunistic discretionary jurisdiction is the Court’s interest in preserving national uniformity, but of course an ersatz uniformity can be created with spongy standards. Throughout the nation, “reasonableness” may be the test, but what the Ninth and Sixth Circuits consider reasonable may differ widely and, for litigants, unpredictably.

     Investment. One has to distinguish short-run constraints on judicial capacity from long-run constraints, which are more malleable. At any given time, judicial resources may be fixed, but decisions within those constraints may affect the shape and level of resources available to the judiciary in the future. Capacities may then themselves be partly endogenous to judicial choices over time.

     A trivial example of this endogeneity would be a judicial decision asserting, on constitutional grounds, that the judiciary must control its own fiscal budget in the name of “judicial independence” - which has actually occurred in certain jurisdictions. Less explicit cases occur where the Court lobbies the political branches for more resources or uses constitutional law to approve the creation of institutions that take over routine workload from the Court, thus freeing up its time and attention for more consequential matters. Examples of the last sub-case include judicial decisions approving administrative tribunals or legislative courts for workers’ compensation cases and routine bankruptcy matters.

     Taking the capacity budget to include political capital, it is a familiar thought that the budget may not be fixed in the long run. Perhaps judicial power is like a muscle that strengthens with exercise so that the use of judicial power increases that power. The frequent invalidation of statutes may condition elite and public expectations in favor of a robust judicial role; by contrast, failure to exercise the power may cause it to atrophy. Again, this too is merely one possible mechanism, but it seems likely that some such effect must enter into a multifaceted explanation for the growth of judicial power, over time, in the United States.

     Anticipated reactions and warning shots. The Danish chess grandmaster Aaron Nimzovich famously observed, or perhaps never observed, that “a threat is stronger than its execution.” The threat to take a certain action, so long as it is credible, often has more powerful effects than actually carrying it out, because of the law of anticipated reactions: the target of the threat must anticipate and react to it, in which case the threat may never need to be executed.

     The paradox can arise, in the cases of interest to us here, when the Court has the potential to intervene anywhere even though, due to capacity constraints, it cannot intervene everywhere. (Overlooking this distinction is an example of the fallacy of division).[2] In a stylized dialogue, one theorist complains about the countermajoritarian difficulty, and the rejoinder is that the Court’s capacity is extremely limited, so that the Court can challenge very few important political decisions at any given time. The rejoinder to the rejoinder is that the threat is stronger than the execution. While the Court cannot do very much, the standing threat to override political decisions anywhere potentially affects the anticipated reaction of institutions everywhere.

     If those institutions react accordingly — if, for example, they never enact constitutionally questionable legislation because the threat of judicial invalidation has a deterrent effect — then the threat has worked even if invalidation is never observed, and the Court’s capacity limitation is never actually implicated. Such a threat may work, assuming it is otherwise credible, even if politicians know that the Court cannot invalidate everything, so long as the Court has a broad domain of choice about what to invalidate; adapting Mark Tushnet’s phrase, political actors must then reckon with a kind of “judicial overhang.”[3] Of course under certain political conditions such a threat might actually increase the willingness of political actors to take unconstitutional action, in an example of moral hazard. The point isn’t that the threat is always stronger than the execution, but that it can be, and the analyst always has to consider whether it is.

     The real-world correlate of this theoretical point is a judicial tactic that we may call the warning shot. Here the Court invalidates a statute or official act in a way deliberately calculated to create uncertainty about how far political actors may go in the future, on the principle that uncertainty creates deterrence. In this pattern, the Court issues an invalidating opinion that is fact-specific, perhaps saying that “on this unique combination of circumstances,” the political branches have “gone too far.” The Court, however, does not then immediately go on to create a robust jurisprudence invalidating other action on similar grounds; indeed it may never revisit the issue again, or at least not for a long time. Rather it leaves the decision in a kind of limbo, creating a spectral version of Tushnet’s judicial overhang. Plausible examples include the Schechter Poultry case, which to this day has created a kind of spectral nondelegation doctrine; Lopez v. United States, which reawakened Commerce Clause review of federal legislation yet hardly ushered in a new era of robust judicial review; and District of Columbia v. Heller, which made clear the Court would engage in individual-rights review under the Second Amendment, but which remained in suspension at the Supreme Court level for over a decade (apart from its predictable extension to the States).

     While in this and other ways, one may complicate and refine Coan’s analysis, I continue to believe that the book’s systematic and clear-minded quality will ensure it a place as a standard citation in the central debates over constitutional interpretation. Sophisticated, albeit informal, institutional analysis has become the normal science of constitutional theory, as Coan’s work nicely illustrates.

Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard University. You can reach him by e-mail at avermeule

[1] It’s hard to know where to begin. Crucial entries would certainly include Alexander Bickel, The Least Dangerous Branch (1963); Jesse Choper, Judicial Review and the National Political Process (1980); Fred Schauer, “The Court’s Agenda — and the Nation’s,” 120 Harv. L. Rev. 4 (2006). For my own efforts, see “Interpretive Choice,” 75 N.Y.U. L. Rev. 1 (2000); Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006); The System of the Constitution (2012).
[2] Vermeule, System of the Constitution, supra, at text accompanying notes 69-74.
[3] Mark Tushnet, “Some Notes on Congressional Capacity to Interpret the Constitution,” 89 B.U. L. REV. 499, 504 (2009).

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