Thursday, September 19, 2019

Testing the Judicial Capacity Model

Guest Blogger

For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).

Mariah Zeisberg

I’m rather critical of Andrew Coan’s Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press).

I find it theoretically and empirically underdeveloped. Its underdevelopment may actually be helpful in assuring it some measure of impact. What I call underdevelopment, others might call elegant simplicity. But I found the book less useful than I had been hoping.

The work’s strengths include the value of articulating a “capacity model,” its development of two hypotheses from that model, and its articulation of tensions and convergences between the “capacity model” and the attitudinalist and strategic models of Supreme Court decisionmaking. Its weaknesses include that its tests are not rigorous, its relatively superficial engagement with legal theory, and its replication of some legalist stereotypes that positive social science really needs to take up systematically.

I’ll speak first to the theoretical development of the model itself. Coan’s basic idea is that the Supreme Court is concerned with managing its workflow in a context of adherence to  certain bedrock norms. When discussing the meaning of capacity, he uses an appealing budget comparison; in Coan’s analysis, as some domains of law ‘open up’ for litigation, others must restrict, in order for the Court to maintain its commitments to professionalism.

Although he asserts otherwise, the author must know that a great deal of work explores the question of judicial capacity both positively and normatively. He cites much of it. I’ll focus on three important examples: Lawrence Sager’s Justice in Plainclothes (a normative theory of constitutional decisionmaking entirely premised on the Supreme Court’s necessary underenforcement of the Constitution); Gerald Rosenberg’s The Hollow Hope (a canonical work of social science that explores the conditions under which the Court does, and does not, overcome its capacity constraints); and, most canonical of all, Alexander Bickel’s The Least Dangerous Branch, a capacity argument premised on tropes about judicial passivity drawn from the Federalist Papers. These three texts are themselves embedded in vast fields of literature which extend, challenge, and engage their premises, and those literatures are a resource for anyone trying to develop a “capacity model.” Why the author does not make use of these resources beyond citing them is mysterious. The book states that no legal theorist and no positivist inquiry has been conducted on the question of judicial capacity, and this claim is false.

Neglecting these literatures limits the book. For example, Coan neglects other hypotheses that the “capacity model” is associated with. Consider Bickel’s recommendation that a Court concerned with capacity should decide cases on narrow grounds rather than broad ones, and that it should time its interventions in a way that is sensitive to politics unfolding in other branches (in order to not replicate or displace their work). This recommendation can certainly generate testable hypotheses. Gerald Rosenberg’s work generates a hypothesis that Courts concerned with capacity should time their major interventions in ways that are supported, rather than blocked, by the other branches. Otherwise, he says, Courts will be overwhelmed with the litigation that is produced as legal norms are invited into lonely combat with entrenched social and political forces. This is essentially his argument about Brown v. Board of Education. Rosenberg also argues for a different way of understanding “capacity” – not only in terms of ongoing litigation, but also in terms of ability to enforce the outcomes they generate. If capacity means enforcement of legal rulings, then this perspective would generate a hypothesis that capacity-concerned Courts should be more likely to offer controversial rulings in areas that don’t require the participation of other branches, for example criminal procedure, rather than, say, equal protection.

The hypotheses Coan announces are that, in areas which implicate both “high stakes” questions and a “high volume” of cases, the Court will either defer to the political process “or employ clear categorical rules for deciding cases, which reduces uncertainty and thereby encourages greater voluntary compliance and settlement outside of court.” (23) His logic is that the Court, in such a context, will be concerned to limit the litigation it must deal with, and that it will use deference and rule-intensive decisionmaking to do so: “If parties can predict how courts will decide cases in advance, there is less reason to go to the trouble and expense of litigating them. Settlement is cheaper and easier and yields a roughly similar result. Clear rules also promote uniformity in lower-court decisions” (24)

If his aim is truly to test this model, he needs more hypotheses, both so that he can be in real dialogue with others working out capacity issues, and also so that he can disaggregate between different models that predict the same results. The variety of predictions that are embedded in the capacities literature, as well as his own observation that the Supreme Court operates on a kind of “budget” --- and so should shut down some areas of law, in order to open up others – all of these could generate testable hypotheses. Some of them would likely require far too much data to actually test. But laying out the spectrum of testable possibilities would help readers get deeper into the logic of the theory he is advancing.

Beyond capacity models, a great many legalist theories would also predict the use of rules, and deferential behavior – indeed these are starting points for most normative theories of judicial decisionmaking that I’ve encountered. Political process viewpoints would be especially emphatic about these values.

What kinds of hypotheses could distinguish between a Court that is interested in maintaining predictability, for predictability’s sake, and a Court that is concerned with predictability, for reasons of managing a professional workflow? These might be impossible to disentangle. But speculation would be useful if only to shed light on the logics that are at play.

It was never quite clear to me what would falsify his narrative. When we look at the commerce clause, would unpredictable and nondeferential behavior amount to a falsification? I think so – but it’s apparent to all readers, well before they read Coan, that commerce clause jurisprudence is neither entirely unpredictable nor nondeferential.  Furthermore, Coan doesn’t look at areas that don’t pose capacity issues, but if we find rules and deference everywhere we look, then that certainly is relevant to understanding the significance of these strategies in high volume, high stakes areas as well. Where does the Court use context-sensitive jurisprudence, according to Coan, and can the capacity model generate any predictions about the ebbs and flows of such choices?

A major alternative explanation for similar results (rules and deference) is the idea of legalism and comparative judicial expertise: the idea that rules are a hallmark of legalism, and that when judges lack the competence to generate workable rules, they ought to defer. This would lead us to predict more deference in areas where judicial competence is lower. Coan speaks as if judicial competence is a blanket phenomenon, but to me, it seems clear that judges would be less competent at matters of, say, whether a specific war should be started or not, then they would on matters of criminal procedure. Variation in judicial expertise should generate testable hypotheses.

Furthermore, I think that if capacity is the main story here, we should be seeing more jurisprudence in areas which don’t threaten judicial capacity but which do advance the Justice’s attitudes without invoking the threat of retaliation. War powers is an important example. It’s easy enough to rule that a specific war is unconstitutional, or in fact to endorse its constitutionality. Wars are infrequent enough events, and specific enough, that it’s hard to imagine a docket being overwhelmed with questions about the meaning of the “declare war” clause. In this context, the Court’s self-perceived incompetence is probably a better explanation for its deference than either legalist, attitudinalist, strategic, or capacity models.

How far do such concerns about competence takes us? I don’t think Coan gives us enough here. What if the Court’s commerce clause jurisprudence is really about the massive embarrassment it feels from ridiculous decisions it issued in cases like Carter v. Carter Coal (1936), which put coal mining beyond federal regulation. Cases like these were an outrage in a political moment when the decency of workers became nationally significant and when new economic strategies made effective regulation plausible. These decisions, and the consequences they had both for workers and for a justifiable regulatory state, are embarrassing. Might embarrassment over its mistakes be a reason for the Court to retreat from commerce? In the area I’ve written on, legislative/presidential interactions, a similar case would be how Congress’ resistance to World War II formed the legislature’s sense of itself as a branch that had best defer to the smarter people in the room (in the presidency). Big mistakes generate narrations about what institutions ought to be doing that can be remarkably sticky. Coan calls that a “regime theory” and says it generates no common conclusions through time and so isn’t testable. This might fly if his own model could reasonably purport to account for timeless judicial behavior. But restricting his analysis to a specific post-New Deal regime, and then resisting any engagement with regime theories, is problematic.

The predictions he does set out to test, I view less as predictions and more as his assessment/reading of the cases he brings into focus. His methodology appendix does not talk about how he handles boundary-line judgments (i.e., how he determines whether something is a rule or a standard) or provide replicable steps for interpreters. In his discussion of the cases, we see that “rules” sometimes means “standards that are enacted in a rule-like way,” and “deference” sometimes means offering invitations and pathways that other branches do not in fact take up.

Finally, a gripe about what I perceive as the book’s basic undertheorization. “Rules” v. “standards” is not the same as settlement and unsettlement. Some categorical rules – “the Constitution does not authorize paper money” – are completely destabilizing. Some things that look like standards, actually function as rules as they are applied. For example,  “Congress may restrict the removal of officials who perform ‘quasi-judicial’ or ‘quasi-legislative’ functions but not officials who perform ‘purely executive functions’” – the holding of Myers (1926) – this looks nothing like a rule, but Coan rescues it by showing that “in practice, this amorphous standard amounted to a rule of categorical deference.” (103) Moreover, we don’t need to be CLS scholars to see that multiple rules can be clear and categorical, but still together generate profound uncertainty.  Coan never takes up settlement theories of law, and he never really unpacks the contingent relationship between rules, standards, settlement, and destabilization.

At different points in the book he plays on multiple meanings of “predictability” – predictability as a quality of legal materials (a rule generates predictable outcomes), versus predictability as a social fact (I predict that Kavanaugh will not be impeached). In his discussion of cases, it was often unclear to me whether the “predictability” at play was inherent to the legal materials, or simply a point of fact in the world. There are different theoretical stories here that Coan does not tease apart. My point is not that judges can’t make predictions about likely impact of their cases. My point is also not that interpreters can’t predict what the Court will do next, or that judicial rhetorics don’t open and close up pathways. My point is that these accurate predictions may have little or nothing to do with whether or not the Court is offering a rule, a standard, or a context-sensitive judgment.

The commerce clause is a key example. Coan calls the economic/noneconomic distinction and the action/inaction distinction “categorical rules.” I beg to differ. The concept of “economic” is far too broad, too subject to theoretic controversy, to function as a rule. (Sadly for Balkin and his masterful reworking of the commerce clause, Coan views it as “uncontroversial that noneconomic activity is not commerce,” p69)

However, despite not being a categorical rule, the economic/noneconomic distinction may enact a settlement function because as a point of politics, “we all know” what the Court means.   The activity/nonactivity distinction is likewise theoretically threatening, especially in a context of employment discrimination, where failure to accommodate (a nonactivity) can be an actionable offense. In my view, when the Court announces a “limited” ruling along the action/nonaction divide in NFIB v. Sebelius , what makes the exception limited is not that action/inaction is a categorical rule with limited implications for the jurisprudence SCOTUS faces. What makes it limited is that none of us really believes that the Court wants to take apart the Americans with Disabilities Act.

Coan’s discussions of divergent predictions are really useful. He takes apart how attitudinalist models can’t explain the failure of Justices to press their attitudes in areas like commerce, federalism, or equal protection; and notes that strategic models don’t predict the commonalities we see in jurisprudence in these domains. The models, to my eyes, are trying to explain different aspects of judicial decisionmaking, and the book is strongest when it explores the intersecting and complementary aspects of these different viewpoints. I do think it’s useful to have a book on the table that names something like a “capacity model,” and that generates some predictions, and that shows us how a very smart person thinks through capacity considerations in his readings of important areas of doctrine. For this we can thank Professor Coan.

Mariah Zeisberg is Associate Professor of Law and Politics at the University of Michigan Political Science Department. You can reach her by e-mail at

Older Posts
Newer Posts