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 uchicago.edu