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 But it offers exciting potential: its explanatory effect could outstrip either the increasingly-outdated, but ever-resilient, attitudinal model as well as strategic models (positive political theory) of judicial decisionmaking.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 Regimes—the 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.