Monday, September 16, 2019

Normative Constitutional Scholarship meets 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).

Victoria Nourse

Andrew Coan has written a great book with a strong, powerful idea.  Many constitutionalists of contemporary standing have never written a book so thoroughly focused and entirely theoretical (apologies to the readers who think that they have).  Coan’s idea sounds boring:  he calls it “judicial capacity.”  But it offers exciting potential:  its explanatory effect could outstrip either the increasingly-outdated, but ever-resilient, attitudinal model as well as strategic models (positive political theory) of judicial decisionmaking.   More importantly, this model actually explains the rough (emphasis on rough) shape of constitutional doctrine, over a broad set of cases, something neither of those models do.

Coan argues that in high capacity domains (lots of cases) courts will seek to manage those domains.  Coan claims the very smallness of the institution, and norms which celebrate the virtues of smallness  (high quality judicial resolution), coupled with hierarchy, lead toward certain kinds of doctrinal behavior: constitutional law’s preference for hard-edged rules on the one hand and/or high deference to political actors on the other.  That, in turn, explains  a good bit of the caselaw taught in constitutional law courses, from the separation of powers to the commerce clause to the equal protection clause.   For the details, read the book, but a good bit of it will sound convincing to those who teach constitutional law.

I suspect that the biggest pushback will come from the resilient normativity of constitutional practice and scholarship. Compare Coan’s book with two others, of recent vintage, and more traditional within the constitutional normative tradition:  Erwin Chemerinsky’s Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable (2017) and Jim Pfander’s Constitutional Torts and the War on Terror (2017). Both are extraordinarily well written pleas that the modern federal courts have simply shut themselves down in the face of rather egregious constitutional failures.  Each presents erudite  arguments that these modern failures have no historical antecedents, or at least mixed ones, and claims that we cannot see these failures because courts have hidden them in arcane procedural devices, from habeas corpus to clear statement rules.

If Coan is right, what has happened in the world of constitutional torts (Pfander) and judicial access (Chemerinsky) is entirely predictable.  Why?  Judicial capacity.   Courts create  circular rules like “clearly established law,” in qualified immunity cases or higher pleading standards in civil or habeas cases to reduce courts’ caseload.   Constitutional torts are a good example because they literally cover every government actor—the “high judicial capacity” domain that Coan targets.   The obvious question then is this:  If Coan could have predicted that courts would create a highly deferential bright line standard, in Pfander’s case, or closed the courthouse door, in Chemerinsky’s, what role should normative scholarship play?  I suspect that Coan would answer that critics of constitutional doctrine would be better off tailoring their normative complaints, and proposed solutions, to the limits of judicial capacity.   But would Chemerinsky or Pfander agree?   I wonder.

The normativity instinct:  Normative scholars are likely to ask whether high capacity domains should yield precisely the opposite normative result.   Think Brown v. Board of Education.   High judicial capacity domain: schools across  America.   To normative scholars, the very fear of judicial capacity overload should in this case signal something quite the opposite from “stay away,” it should signal “lean in.”  High capacity means an important problem of justice, not something to ignore because of practical constraints.  This is why Pfander and Chemerinsky are outraged at doctrines that close the courthouse door to large numbers of legitimate constitutional claims. Put in other words, behavioral or consequentialist theory is likely to invite scholars to once again start debating normative limits.

The variance question:  Coan predicts that courts will manage high capacity domains to limit the caseload.    But there are plenty of examples of high capacity domains that courts have considered, namely lots of criminal procedure doctrines, not to mention institutional litigation—prisons and schools--in which the rules are not terribly bright nor deference near-absolute.  Coan recognizes exceptions, bowing to the Warren court in particular.   But he does not really grapple, in my opinion, with variance.   Any complete theory must explain variance--the cases in which high capacity does not yield the bright line rule, or deference (Coan’s prediction), cases in which the opposite happens—cases in a high capacity domain where the court leans in with mushy standards. 

Predicting high capacity:  Perhaps less intuitively, the very idea of a high capacity domain may be more difficult to define than at first appears.  The Supreme Court famously struck down the federal civil rights remedy for physical harassment and sexual assault in United States v. Morrison.  Coan is right that this seemed to the judges like a “high capacity” domain.  (Chief Justice Rehnquist actually lobbied against the act when still in Congress, arguing that it would flood the federal courts with tens of thousands of what he called “domestic relations” cases, his estimate, his words, not mine).  In fact, during the six year life of the remedy, it yielded somewhere under 150 total cases, no doubt a low figure given that the remedy was under constitutional attack, but nowhere near the courts’ own projections.  Put in other words, what seemed like a high capacity domain may well not have been.   Instead, the real onslaught of cases came with hundreds if not thousands of constitutional challenges based on the commerce clause, virtually all of which were rejected, leaving Morrison a lonely outlier.  The point:  judicial capacity estimates can be factually wrong because they are themselves predictions; and those predictions may be more complex than they might at first appear.  In theory, if one really wanted to determine judicial capacity, one would have to assess the relative potential for constitutional litigation (Lopez bred lots and lots of constitutional cases) against the potential for litigation of the underlying issues (sexual assault and harassment cases). 

Doctrinal Regimesthe Problem of Time and Simultaneous Causation:  Finally, what Coan has attempted to explain is largely (although not exclusively) modern doctrine.   There are analogs in the New Deal—where the court famously reverses course because it cannot manage the distinctions it has created (think indirect/direct effects on commerce).   But it is possible that what he has described varies over time and that he is explaining the current, but far from inevitable, doctrinal regime.  A comparative study of nineteenth century doctrines might help to reveal such a possibility.  Not only is there a problem of time, but multiple causal mechanisms.  It is possible that there are other causes than capacity operating in parallel.   It may be that a modern 20th century doctrinal regime apparently powered by capacity is simultaneously powered by a normative preference for less law, as more economically efficient, for example.     

Food for thought for Coan’s next book.  If I were him, I would partner with a teched-up social scientist, and spread the word beyond law schools.

Victoria Nourse is Ralph V. Whitworth Professor of Law at the Georgetown Law Center. You can reach her by e-mail at Victoria.Nourse at

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