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 law.harvard.edu
Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard University. You can reach him by e-mail at avermeule law.harvard.edu
[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).
[3] Mark Tushnet, “Some Notes on
Congressional Capacity to Interpret the Constitution,” 89 B.U. L. REV. 499, 504
(2009).