Thursday, September 12, 2019

Judicial Norms and Judicial Capacity

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Aziz Huq

Andrew Coan is not just a terrific scholar—a quick perusal of “Rationing the Constitution” confirms that—he is also a pillar of the scholarly community in American constitutional law. As organizer of the only field-wide constitutional law event, held every winter in Tucson, he has innovated and thereby made a substantial contribution to the field. (I should disclose that he has twice invited me as commentator. I’ve profited much on both occasions from the debate and papers, but hope to ignore that generosity in the response that follows).

Coan’s design of the Tucson conferences provides a useful counterpoint to the account of judicial review offered in “Rationing the Constitution.” The first offers an ecumenical and diverse perspective on many constitutional questions. The latter, called the judicial capacity account, explains why we see the Court using only a small part of “the constitutional choice set” (p.165), i.e., the set of all possible extrusions of constitutional prohibitions and mandates via a selection among all potential doctrinal specifications. On Coan’s reading, judicial constraint arises from the Justices’ commitment to certain norms of professionalism, uniformity, and “timely and efficient access” to adjudication (pp.14-16). These norms help explain why the Court hews to clear, formal rules or deference to elected institutions when doing otherwise invites either “high volume” or “high stakes” litigation (p.23). The ensuing account of constitutional review is causally distinct from the legalist, attitudinal, and strategic models of judicial behavior that dominate academic literature now.

A churlish reduction of Coan’s thesis would be a simple tautology: “the Court does only what it can do.” The account’s richness and utility, however, springs from its identification of norms respecting Supreme Court adjudication as the source of constraint (p.158). It thus stands or falls on the extent that these norms can do load-bearing analytic work. Although there is much that is new, important, and valuable in Coan’s theory, I cannot shake qualms. Some pertain to his account of when the Court experiences a capacity constraint. The more querulous, though, dog his assumption that norms can do the needful explanatory work.  

I start with some comments about the ways in which Coan suggests that adjudication of a discrete legal issue can generate capacity ‘bite.’ He sketches two. The first is that it is of such high volume that “no procedural recalibration or shifting of resources from other areas could possibly stem the tide” (p.25) The second is that an issue is of such high stakes that the Court “is much less willing to tolerate disuniformity” such that the “significant demand” on the Court’s attention will “very quickly produce a … bottleneck.” (p.29). Both these capacity-straining dynamics hinge on the sheer numerosity of cases that the Supreme Court faces. They exclude the possibility of extrinsic forces as a check on judicial action.

To begin with, I am not sure “high volume” and “high stakes” are separate categories. There is no “pure” case, Coan notes, of the latter (p.29). In practice, he invariably stresses the “enormous volume” of cases as a dispositive factor (p.110). Occam’s razor might have been wielded here to good effect.

Yet the category of “high volume” cases is also troubling. At first, Coan’s definition of “high volume” issues is framed in terms of challenges to “government action … at all levels.” (pp.25-26). But in subsequent chapters, he suggests that it is only litigation involving federal legislative or agency action falls within his bailiwick (see, e.g., pp.74, 108, 152-53). And in either case, Coan seems resolutely focused on the Supreme Court alone, rather than the volume of cases experienced by the federal judiciary as a whole.

I think Coan is best read to embrace the latter, less capacious definition (although I cannot be sure, see pp.25-26). To me, the most interesting question is why. Why, first, should we think about capacity in terms of just the Supreme Court? As Marin Levy documented in a 2013 article, the Court’s opinions more often than not express “floodgates” concerns about the federal judiciary as a whole, rather than just the Supreme Court. Why not take the Court at its word? And then, why just federal laws and regulations? Why not also count conflicting rules on the conduct of individual federal officials? Or federal statutes, including “superstatutes” that are more consequential and more often litigated than many constitutional provisions (p.35)? Or the federal validity of conflicting state laws? Coan here cannot rely on some textual commitment. The formal criteria for certiorari review adumbrated in Supreme Court Rule 10 underscore interjurisdictional conflict and “important question[s] of federal law,” including disputes about statutory interpretation and administrative law. It does not pick out the narrower category to which Coan appeals.

I will return below to try to answer those questions. Here, I think it’s sufficient to say that there’s more to Coan’s terms “high volume” and “high status” than first meets the eye. Both are doing normative labor beyond what their plain-spoken exteriors allow.

Before we get to those answers, a second element of Coan’s account merits attention: This is the implication that when the Court faces high volume or high stakes it will “feel strongly constrained” (p.31) to either defer to the elected branches or else adopt some sort of categorical rule. This means, on Coan’s view, that “the government will almost always win, or that the application of the Court’s test will almost always be readily predictable by judges and litigants” (pp.39-40; emphasis in original). Notwithstanding the use of disjunctive in that sentence, I read Coan to suggest that the Court is commonly “constrained” in ways that generate the eponymous constitutional rationing. Indeed, the gist of the book is that the footprint of judicial review will generally be quite limited.

The problem here is that Coan’s analysis does not necessarily point toward either a highly diluted constitutional shadow, or a predictably predictable rule. Rather, his analytic model is consistent with a powerful Court capable to dramatically reshaping the landscape of federal law in unanticipated ways.

To begin with, there is no reason why a capacity-derived constraint on the adoption of standards, and a felt compulsion to use instead rules, reduces the shadow of constitutional prohibitions. There is no reason, as Coan implicitly acknowledges later, that the Court cannot adopt rules that slice ruthlessly across the existing federal regulatory landscape (p.172). “No independent agencies.” “No administrative adjudication.” “No federal rule-making with force of law.” Such big things, as T.E. Lawrence famously said (at least per David Lean), can have small beginnings. The Court, I think, is perfectly capable of using crisp rules to generate sweeping effects.

Nor are rules necessarily predictable or tractable in the manner that Coan assumes. Just reflect on two of Coan’s leading examples of stable and predictable categorical rules: the economic/noneconomic distinction of Lopez and the activity/inactivity of Sebelius. I teach Lopez a few hundred feet from where Gary Becker’s Nobel medal is kept. Becker won for “[e]xtend[ing] the domain of economic theory to aspects of human behavior which had previously been dealt with by other social science disciplines such as sociology, demography and criminology.” Whatever one thinks of its merits, that body of work—and the enormous body of scholarship in its wake—complicate the economic/noneconomic distinction. Nor is it at all clear why the Sebelius rule “threatened only one existing federal statute.” (p.73). Students of federal power well recall that the sin of Ollie’s Barbeque was one of omission—inactivity in the market of African-American customers. If these rules have proved infertile berths for follow-on litigation. it has nothing to do with their verbal formulation as rules. (Readers of the Hart/Fuller debate will need no persuasion on that score). Coan’s effort to derive a steady-state equilibrium from the juridical dominance of rules, therefore, is unfounded. Something else entirely is needed to explain why the floodgates don’t open.

Neither the conditions nor the consequences of constrained judicial capacity in Coan’s theory, then, is as clear as he suggests. But these concerns are ultimately ancillary to a deeper problem with the theory—a problem that goes to the very heart of its contribution.

The causal motor of Coan’s theory, recall, are a set of norms associated with Supreme Court adjudication. Coan himself says, in an uncharacteristically ungainly turn of phrase, that “What the judicial capacity model adds is the insight that judicial norms are crucial to understanding the constraining force of judicial capacity” (p.158) At the same time, he also recognizes but “bracket[s]” the possibility that his load-bearing norms have “structural determinants.” (p.17). But I do not think this is a plausible demarcation of analytic scope, and I do not believe that an account of judicial behavior that relies on “norms” alone as its foundation can fully avoid a measure of dubious circularity. 

A first reason for concern is that invoking “norms” as causal determinants of judicial behavior allows for many degrees of freedom: In the absence of any determinate fixation of what those norms entail, an analyst can simply look at the behavior to be explained, and then reason back to a norm explanans. As I hinted above, Coan invites this kind of criticism when he embeds key terms such as “high volume” and “high stakes” with hidden assumptions about which caseload matters, and what kinds of disputes are important. The risk here is that “norms” are being derived here simply by reasoning back from observed behavior. It is hard to see how this procedure—which allows for the derivation of norms to predict behavior from that very behavior—can be a basis for strong causal claims.

An additional problem is that some of the specific norms that Coan cites are not, in fact, characteristic of the federal legal system. He cites, for instance, a norm of “timely and efficient access to the legal system” (p.16). This norm is certainly not observed in important federal contexts, such as immigration law. Perhaps the norm remains as aspiration, even as it is traduced on the ground. If so, Coan ought to give us some reason to continue to make it seriously as a normative commitment.

Finally, reliance on norms as a source of capacity constraint begs the question of why those norms do not buckle in the face of contrary felt compulsions. The current constitutional dogfights over Brexit in the United Kingdom have nicely illustrated how longstanding and seemingly inviolable norms can prove suddenly diaphanous. One of the pressing and fascinating questions at the time of this writing (early August 2019), indeed, is what constitutional conventions persist in respect to parliament-executive relations. Conventions in the U.K., as such norms are known in British constitutional parlance, have long been thought more durable than their analogs in American law. Yet they buckled there. And if not there, why not here, especially since none of the norms upon which Coan relies are memorialized in text or judicial precedent? Even setting to one side questions of content, therefore, it is not sufficient to invoke the fact of a convention. It is also necessary to offer an account of why the convention is stable and why it will persist in the teeth of countervailing pressure to ends-oriented violation. 

None of this is to say that the judicial capacity model ought to be abandoned. To the contrary, I think that Coan makes a useful start on clarifying the proper role of norms in an account of judicial behavior, especially when he recognizes the potential endogeneity of the judicial capacity model to alternative legal and strategic accounts, and vice versa (pp.48-49). But in my view more needs to be said about the way in which norms are specified and theirs causal predicates for the judicial capacity model to ultimately endure. I hope that “Rationing the Constitution” works as a useful first step to that larger project, a project that Andrew Coan is eminently well-qualified to pursue.

Aziz Huq is the Frank and Bernice J. Greenberg Professor of Law at University of Chicago Law School, and a visiting professor at Stanford Law School. You can reach him by e-mail at huq at

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