Balkinization: Too Much, Too Quickly?

Too Much, Too Quickly?

Andrew Coan

Last year, I published a post here expressing qualified skepticism about arguments that the Supreme Court is changing too much, too quickly. I have now written a full-length article on this subject, which expands on my earlier skepticism but also tries to think hard about what might be said on the other side. In the course of writing it, I came to view the question as more difficult, complicated, and interesting than I originally appreciated. Here's the abstract:

This Article explores the increasingly common but under-theorized claim that the Supreme Court is changing too much, too quickly. The claim is a general one, not limited to the current historical moment. But major shifts on the Court over the past three years have thrust it to the center of the constitutional conversation. The Article therefore begins by surveying prominent contemporary examples spanning abortion rights, gun rights, race, religion, and the administrative state. It then asks how we should define and measure constitutional change.

With this framework in mind, the Article proposes four ways of understanding the “too much, too quickly” critique: as an argument for across-the-board judicial gradualism, as mere sour grapes or bad faith, as unapologetic ideology, and as a call for context-sensitive gradualism specific to the current Court that nevertheless seeks to transcend ideology in the narrow-left-right sense. Each of these understandings has strengths and weaknesses, but this Article shows that all four are necessary for a complete picture. Their complex interplay illuminates the central question posed by the “too much, too quickly” critique—namely, how to balance the costs and benefits of constitutional change.

The main upshot is that moral and ideological judgment are extremely difficult and perhaps impossible to fully disentangle from any assessment of constitutional change. But neither is this assessment wholly reducible to ideology in any narrow or simple sense. Different versions of the critique can also overlap or operate in conjunction, raising complex questions about mixed motives that neither critics nor defenders of the Court have adequately appreciated. Meanwhile, the charge of sour grapes is significantly harder to establish than is typically supposed. The charge may still be justified in some cases, but it is most useful as a kind of stress test for critics of the Court to guard against internal inconsistency and motivated reasoning in their own thinking. Finally, different understandings of the critique will often point in different directions, with potentially profound implications for abortion rights, gun rights, affirmative action, and more.

The full paper is available for download here.

Posted 9:00 AM by Andrew Coan [link]