Frederick Schauer
Andrew Coan’s important book[i] on the limits of the Supreme Court’s decision-making capacity is built on three foundational points, all of which are correct. First is that the Supreme Court’s overall policy and political importance and salience are often overestimated.[ii] The offhand comments of political pundits notwithstanding, the nation’s most highly salient policy questions are located some distance away from the Supreme Court’s docket. Even the most important health care questions, for example, are being resolved (or not) legislatively, politically, and administratively rather than judicially. The same applies to immigration, where what the Supreme Court has does is not nearly as consequential as a host of executive, political, and administrative decisions. And when we move to tariffs, climate change, relations with Israel and Iran and China, treatment of victims of sexual violence and sexual harassment, monetary policy, opioids, and the size of the American military presence abroad, for example, the gap is even greater. And just as most of the important political and policy issues overlap only loosely with the Court’s business, so too is most of what the Court does – even on questions of abortion, sexual orientation, and religion – located well down on the list of what the sophisticated polling data indicate are the public issues that Americans think most important.
Coan’s second
point is that crisply formulated rules, including those emanating from the
courts, can forestall litigation. Jeremy Bentham recognized the
litigation-stifling character of clear rules more than two centuries ago,[iii]
and although Bentham was motivated far more by revulsion of the courts than
recognition of their limited capacity, he, like Coan, understood that litigation
is typically prompted by the indeterminacy of the governing law. And thus if a
legislature (for Bentham, and for the Napoleon of the Napoleonic Code) or the
Supreme Court (for Coan) sets forth precise and easily understood conduct rules,
the domain of dispute and thus of judicial dispute resolution is contracted.
Third, and
relatedly, Coan demonstrates that doctrines of judicial deference to decisions of
other branches or institutions may also reduce the scope of judicial power and
the degree of judicial involvement with questions of policy. Whenever a court
adopts highly deferential standards of review – rational basis and abuse of
discretion being obvious examples, and Coan usefully catalogs others – it makes
its own job smaller.
But although Coan is
correct in identifying and documenting these phenomena, the heart of his book
lies in his claim that the limitations of judicial capacity in general, and
Supreme Court capacity in particular, play a substantial role in explaining why
the Court leaves so many important issues aside, why it formulates sharp-edged
rules of conduct, and why it so often adopts deferential standard of review. But
although Coan accurately describes the limited capacity of the Supreme Court, a
capacity that would remain highly limited even if the Court reverted to its earlier
practice of deciding roughly 150 cases a year rather than the current 70, the
soundness of his causal hypothesis seems less clear. Assuming (correctly) that
the Court’s agenda overlaps only poorly with the nation’s policy and political
agenda, assuming (correctly) that the Court often defers to other branches and
other institutions, and assuming (less obviously correctly[iv])
that the Court often formulates crisp rules of conduct, the question is whether
these practices are the consequence of the Court’s limited decision-making
capacity.
The aforesaid
causal question is rendered difficult by the availability of some number of alternative
explanations – explanations for these three phenomena that might not involve the
constraints of a limited capacity Supreme Court. For example, it might be that a
majority of the Justices a majority of the time believed that deferring to
Congress, to administrative agencies, or to the states was simply the right
thing to do, perhaps because of theories of federalism, democracy, separation
of powers, or judicial competence. Or perhaps for some of the Justices some of
the time, and thus perhaps for a majority of the Justices some of the time, first
order policy or ideological preferences are doing much of the work. For
example, Chief Justice Warren’s deferential approach to Congress in United
States v. O’Brien[v] might have been
caused by his worry that aggressive judicial patrolling of congressional
motivation or of incidental effects on speech would produce too many challenges
and thus strain judicial capacity, as Coan posits, but it might instead have
been the product of an aversion to non-linguistic anti-war protests, an
aversion that would explain Warren’s dissent in Street v. New York.[vi]
And then-Justice Rehnquist might have joined the majority in Washington v.
Davis,[vii]
a decision to which I shall return presently, not because he was concerned about
the strain on judicial capacity that would be produced by judicial scrutiny of
unintentional discriminatory effect, but because of his narrow view of equal
protection more generally.
Coan is admirably sensitive
to such problems of ambiguous causation, and thus surveys and explores as
alternative possible causes for the Court’s doctrines of deference and its occasional
(Coan would say frequent) preference for comparatively rigid rules three candidates
offered by the political science literature – the effect of relatively formal
law (the legalist model), the first order policy preferences of the Justices
(the attitudinal model), and the more sophisticated forms of attitudinal models
that fall under the heading of strategic models. Coan finds all of these
explanations less globally potent than his own judicial capacity model and thus
concludes, to take a quote from his discussion of equal protection but one
applicable to his various other doctrinal examples, that “[t]he judicial
capacity model does not explain the Court’s decision to invalidate most
race-based affirmative action policies or its decisions to invalidate state
bans on same-sex marriage or same-sex intimacy. But it does explain why conservative
justices who oppose economic regulations of business and high tax rates on the
wealthy as a matter of policy have resisted the temptation to subject such laws
to serious Equal Protection review. The same goes for liberal justices and laws
that burden – or fail to assist – workers, consumers, and the poor. The
judicial capacity model also explains why the justices have pursued their
ideological goals through a fairly rigid framework of tiered scrutiny that
clearly marks off various narrow categories of government action for serious
review, while subjecting all others to essentially categorical deference.”
There is much that
could be said about these insightful and ambitious explanatory claims, but I
want to focus here on just two issues. One is the possibility of an important
omitted variable, and the other is the methodological question of what domain
the explanatory claim purports to explain, and what methods might justify such
a conclusion.
With respect to the
omitted variable, one concern, a concern that applies not only to Coan but also
to most versions of attitudinal models, as my colleague Josh Fischman documents
and analyzes in a forthcoming article,[viii]
is just what the justices might have attitudes about. Plainly the justices,
like most aware and educated Americans, have attitudes about abortion,
affirmative action, same-sex marriage, and the place of religion in the public
square, among many others. But the justices are likely, even more than the
educated public, also to have views about, for example, federalism, separation
of powers, and the role of unelected and life-tenured courts in making policy.
Those views might, to be sure, themselves be the products of the justices’ views
about the limited capacity of the courts, but they might instead be
capacity-independent views about democracy, elections, efficient governmental
organization, checks and balances, and much else. And to the extent that the
justices have internalized such second-order attitudes about the extent to
which they should hold back on effectuating their first-order attitudes, these
second-order attitudes may offer an alternative explanation for why the Court
has often developed doctrines that restrain even the first-order attitudes of
those who have developed and internalized them. And thus, for example, Justice
White, the author of the majority opinion in Washington v. Davis, and
whose expansive views about equal protection are exemplified by his willingness
in Frontiero v. Richardson[ix]
to treat sex discrimination as a genuine suspect classification and in Milliken
v. Bradley[x] to join the
dissenters from the Court’s resistance to multi-district remedies for
segregation, might have been concerned less about judicial capacity than that injecting
the courts into too wide a range of legislative and administrative decisions
would be inconsistent with his own conception of democracy. We do not know
whether this alternative explanation is sound, but without considering the possible
effect of such second-order attitudes about the role of the courts, attitudes
that tend unfortunately to be neglected in most of the attitudinal literature,
we cannot conclude with any confidence that worries about judicial capacity are
leading the justices to stifle their own first-order policy preferences.
That such an
alternative explanation might exist does not, of course, establish that this
alternative explanation is sound. But acknowledging that limitation leads to another
concern, one that is almost entirely methodological. Admirably, Coan seeks to
offer alternative explanations for many of the Court’s outcomes and thus to test
his own judicial capacity explanation against these alternatives. Coan’s
testing, however, employs a methodology that is at the very least controversial.
In his own words, he seeks to draw “causal inferences” about the causes of the
Court’s doctrines of deference and about its seeming preference for
litigation-limiting rules. In doing so,
he adopts a “qualitative case-study design,” but then a great deal turns on the
selection of the cases to be studied. And here Coan says that he has selected
only “a broad and diverse range of capacity-constrained domains, but no normal
domains, because the causal condition on which the judicial capacity model is
premised is not present in those domains. This method of case selection . . .
[seeks] not to generate a representative sample of the general population of
cases, but instead to identify the subset of that population in which a causal
inference drawn from individual cases holds.”
Coan’s approach, one
often denigrated as “selecting on the dependent variable,” and which is as problematic
for qualitative as for quantitative research,[xi]
does indeed have the capacity to tell us something about the subset of cases in
which the Court’s limited decisional capacity plays a role. And that is an
interesting and important contribution, my caveat about the omitted variable
aside. But the method that Coan employs does not have, nor does it purport to
have, the ability to explain the causal factors at work in the full set of
which this subset is a part. The method might be useful in suggesting causal
hypotheses about that full set, but actually testing those causal hypotheses,
even with qualitative and interpretive methods, nevertheless requires looking
at the full set, and at the very least considering those instances in which the
alleged causal agent was present but for which the hypothesized effect was not
present.[xii] If, for example, there are instances both
within Coan’s doctrinal groups and also of other groups in which the judicial
capacity hypothesis seems not to hold, that might tell us something about its
generalizability. Were the Court as concerned with judicial capacity as Coan
posits, for example, it is unlikely it would have been as willing to allow
judicial scrutiny of unintended effects as it has been in dormant commerce
clause,[xiii]
Establishment Clause,[xiv]
and free speech cases,[xv]
or as willing as it has been in various areas to use loose lists of factors
rather than crisp rules.[xvi]
This is not to say
that Coan’s judicial capacity explanations are unsound for some cases in some
areas. But judicial capacity, which is indeed as limited and as important as
Coan documents, may yet not have as much an effect on the Supreme Court’s
doctrines as Coan concludes. Whether it does, and whether such an effect
explains Supreme Court decision-making and opinion-writing more generally,
remains either to be proved or disproved. Coan has offered us a genuinely novel
and more than plausible hypothesis about one factor that might influence the
Court’s behavior, but broad-scale testing of that hypothesis remains as a task
for the future.
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia. You can reach him by e-mail at schauer at virginia.edu
[i] Andrew
Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court
Decision-Making (2019).
[ii] See
Frederick Schauer, Foreword: The Court’s Agenda – And the Nation’s, 120
Harv. L. Rev. 4 (2006).
[iii] Jeremy
Bentham, Of the Limits of the Penal Branch of Jurisprudence 226-29 (Philip
Schofield ed., 2010) (1789); Gerald J. Postema, Bentham and the Common Law
Tradition 404-06 (1986); Dean Alfange Jr., Jeremy Bentham and the
Codification of Law, 55 Cornell L. Rev. 58 (1969).
[iv]
On the Court’s unfortunate reluctance to formulate broad and crisp conduct-guiding
rules as often as Coan and I would prefer, see Frederick Schauer, Abandoning
the Guidance Function – Morse v Frederick, 2007 Sup. Ct. Rev. 316.
[v] 391
U.S. 367 (1968).
[vi]
394 U.S. 576 (1969).
[vii]
426 U.S. 229 (1976).
[viii]
Joshua Fischman, “Politics and Authority in the U.S.Supreme Court” (forthcoming
2020). Cf. Lisa A. Kloppenberg, Playing It Safe: How the Supreme Court
Sidesteps Hard Cases and Stunts the Development of Law 2001).
[ix]
411 U.S. 677 (1973).
[x] 418
U.S. 717 (1974).
[xi]
Gary King, Robert O. Keohane, & Robert Keohane, Designing Social Inquiry:
Scientific Inference in Qualitative Research (1994).
[xii] Id.
at 38.
[xiii]
E.g., Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (1977).
[xiv] E.g.,
Lemon v. Kurtzman, 403 U.S. 602 (1971), which may no longer be good law
after The American Legion v. American Humanist Ass’n (June 20, 2019).
[xv] E.g.,
Ward v. Rock Against Racism, 491 U.S. 781 (1989). Whether the Court’s
often-announced effects scrutiny in free speech cases actually has any bite is
hardly clear. See Clark v. Community for Creative Non-Violence, 468 U.S.
288 (1964). Nor is it clear that it can or should. See Larry Alexander, Trouble
on Track Two: Incidental Regulation of Speech and Free Speech, 44 Hastings
L.J. 921 (1993).
[xvi] E.g.,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). And also,
Coan’s interpretation to the contrary, United States v. Lopez, 514 U.S. 549
(1995), and United States v. Morrison, 529 U.S. 598 (2000).