Aaron-Andrew
P. Bruhl
In
Rationing the Constitution, Andrew Coan presents a judicial-capacity
model of the Supreme Court’s behavior. The model starts from the unremarkable
premise that the Supreme Court can decide only a limited number of cases. The
Court’s capacity constraints come from material limits (budget, staff, etc.)
and, more importantly in Coan’s telling, from norms of professionalism that
deter the Justices from taking on cases at a rate that would compromise the
quality and craft of the Court’s opinions. The other important underpinning of
the judicial-capacity model, besides the fact of constrained capacity, is the
observation that the Court’s limited capacity does not matter in every
doctrinal space, but rather the constraints bite in what Coan calls
“capacity-constrained domains.” Those are domains that feature high volumes of
litigation or high stakes or, especially, both. High-stakes cases, for these
purposes, are those in which the Supreme Court would feel compelled to grant
certiorari, most paradigmatically cases that strike down federal statutes as
unconstitutional.
The
above might not sound like much of a foundation upon which to build an
interesting theory of judicial behavior, but Coan shows that judicial capacity
is an important determinant of the content of constitutional doctrine. In
particular, the judicial-capacity model predicts that in capacity-constrained
domains the Court will have to either retreat from the scene by announcing
doctrines of deference to the political branches or employ clumsy categorical
rules that may have little first-best merit but at least prove easy for the
lower courts to apply in a uniform way. The heart of the book is a series of
case studies applying the model in fields ranging from the nondelegation
doctrine to equal protection to federalism. The book is a very welcome contribution
to the field of institutionalist approaches to courts, for it provides an account
of how doctrine is shaped not only by the law’s own internal logic but in which,
contra the attitudinalists, doctrine is not merely the product of the
Justices’ political preferences either. Coan’s valuable contribution is to show
the influence of a neglected form of institutional constraint.
I
am largely persuaded that Coan’s judicial-capacity model describes and explains
at least a meaningful amount of the Supreme Court’s behavior. Just how far it
succeeds is largely an empirical question. In the remainder of this review, I
sketch out three new case studies drawn from the Court’s October 2018 Term. The
topics I have selected provide additional tests for the capacity model and,
more importantly, suggest some elaborations on the basic model or highlight other
interesting features of it.
The
first case is Rucho v. Common Cause, which held partisan-gerrymandering
claims nonjusticiable. Although Rucho is new and more definitive, the
Court’s hands-off approach to partisan gerrymandering is not new, and so I am
surprised that partisan gerrymandering does not figure in the book. It would
seem to be a supportive test case. Although one could explain the Court’s
behavior in non-capacity-related terms — in particular by invoking ideology or
even low partisanship — the Court’s retreat is at least consistent with the
capacity model. Perhaps this area did not make the cut because Coan believes it
is equally or better explained by those other factors. Or is this not a “high
stakes” domain? Coan’s central example of high stakes is a decision striking
down a federal statute, but that does not exhaust the category of high
stakes, and partisan gerrymandering would seem to have at least moderately high
stakes in Coan’s sense.
Another benefit of
discussing partisan gerrymandering is that it would shed light on the
interaction between the capacity model and congressional choices about the
Court’s appellate jurisdiction. A capacity-constrained domain is one that
threatens a large number of cases that the Court would feel compelled by
professional norms to review. But almost alone among claimants for the Court’s
attention, some election cases have privileged access to the Court in the form
of mandatory appellate jurisdiction. (Indeed, the particular risk to the Court’s
docket from mandatory appellate jurisdiction came up during oral
argument in Rucho.) The doctrine in a field with
mandatory jurisdiction should therefore be especially susceptible to capacity
influences. And since Congress controls the distribution of mandatory and
discretionary jurisdiction, Congress can indirectly (and perhaps
unwittingly) shape the substance of constitutional law through its
jurisdictional regulations. To put the matter starkly, would partisan
gerrymandering claims be justiciable if cases like Rucho came to the
Court on certiorari rather than appeal?
The
next data points — or maybe harbingers of future more diagnostically powerful
data points — come from a pair of thematically related cases: Gundy v.
United States, which concerned the nondelegation doctrine, and Kisor v.
Wilkie, which considered whether to overrule the Auer deference
doctrine. The nondelegation doctrine is one of Coan’s leading examples of the
explanatory power of the capacity model. And doctrines of judicial deference to
agencies, though often justified on grounds of accountability or institutional
competence, also protect the Court’s capacity by tending to reduce the number
of circuit splits. Gundy was another failed attempt to establish a
vigorous nondelegation doctrine, but one could easily see things turning out
differently in a future case in which Justice Kavanaugh, who did not
participate, joins with other skeptics of the administrative state to cut back
on delegations.
Such
a future decision would probably present Coan’s account with a powerful
counterexample. To be sure, one could imagine a strong nondelegation doctrine
that is compatible with the capacity model — such as a nondelegation doctrine that
uses blunt categorical rules that may cause havoc in the administrative state
but would at least prove easy enough for the lower courts to apply. In any
event, the current composition of the Court and the concurring and dissenting
opinions in Gundy suggest that a probative test for the capacity model
is in the offing. Kisor, which cut back on but did not overrule Auer
deference, is not very significant for Coan’s project in itself but it reminds
us that the higher-stakes matter of Chevron deference’s future looms on
the horizon, with potentially substantial implications for the capacity model.
Because Coan’s model is descriptive and explanatory, its accuracy is tied to the
Court’s membership and appetites, and every October presents an opportunity for
reevaluation or even the conclusion that the model has become false.
Last,
I want to describe a case that presents a normative challenge to the Court’s
behavior and suggests an extension of the judicial-capacity model. The case is United
States v. Davis, which held unconstitutionally vague a federal criminal
statute that applied to the use of a firearm in connection with a “crime of
violence.” Davis followed on from Sessions v. Dimaya (2018)
and Johnson v. United States (2015), which invalidated similar
language in other criminal statutes. These decisions create a lot of work for
lower courts as defendants sentenced under these frequently used statutes seek
resentencing. Part of the reason is that unlike many pro-criminal-defendant
rulings, these cases apply retroactively to final convictions. See Welch
v. United States (2016) (holding Johnson retroactive); 2016 Judicial
Business Report – District Courts (observing that “prisoner petitions
jumped 197 percent (up 19,588 to 29,546 petitions) as motions to vacate
sentences rose 350 percent (up 19,317 to 24,837 petitions)”); 2016 Judicial
Business Report – Courts of Appeals (attributing 188-percent increase in
original proceedings in courts of appeals to requests for leave to file
successive habeas petitions in light of Johnson and Welch).
No
matter how much these cases test the capacity of thinly stretched lower courts,
the cases do not pose much of a challenge to the descriptive accuracy of Coan’s
judicial-capacity model. True, the professional norms that Coan attributes to
the Justices include a desire to maintain adequate access to timely justice in
the system as a whole. But the capacity that matters most to them, based on
Coan’s case studies, is the Court’s own capacity, which requires doctrine that
avoids generating too many cases the Court must take up. Some decisions can
advance both of those capacity-related goals, such as creation of a rule of
deference to the political branches, which tends to depress litigation in the
system as a whole. But the goals can also come into conflict. In Justice
Alito’s view, the constitutional holding in Johnson reflected the
Court’s desire to “rid [its] docket” of a seemingly endless stream of
“bothersome” cases addressing circuit splits over the “violent felony” and
“crime of violence” definitions. Johnson, 135 S. Ct. 2573-74 (Alito, J.,
dissenting). To that extent, the Johnson/Dimaya/Davis line
is consistent with the (Supreme Court-centered) capacity model, though not compelled
by it (given that the circuit splits do not have high enough stakes to demand
more than one or two cert grants a year). True, the decisions did predictably
swell the dockets of the lower courts, leading to many thousands of requests
for resentencing. Yet those resentencings, numerous as they are, will not
generate too many high-stakes cases the Court will feel compelled to review.
As
a matter of describing the Justices’ own preferences, I think Coan is right to
lay the emphasis on the Court’s own capacity, but this raises normative
questions about whether it is proper for the Court to care so much about its own
capacity compared to that of other courts. Are the Justices just being selfish?
Or are they right to view their own docket as a precious national resource? Is
it socially valuable for them to write few but elaborate opinions? More
valuable than faster and better justice in the lower courts?
Considering
the lower courts’ capacity also allows a generalization of the capacity model. Lower
courts too have some lawmaking discretion, even in the district courts, and
they are sensitive to burdens on themselves even if the Court isn’t. When faced
with sacrificing their own professional standards (or leisure or other goals),
they can be expected to take steps to limit their own docket load, even if this
means mangling or undoing the Court’s rulings. Scholars have documented such
behavior, which shows the broad applicability of judicial-capacity models
(emphasis now on the plural), such as the one Andrew Coan has so ably and
valuably presented.
Aaron-Andrew P. Bruhl is Associate Dean
for Research and Faculty Development and Professor of Law at William & Mary
Law School. His publications are available here.