Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making

by Andrew Coan

Overview

In this groundbreaking analysis of Supreme Court decision-making, Andrew Coan explains how judicial caseload shapes the course of American constitutional law and the role of the Court in American society.

Compared with the vast machinery surrounding Congress and the president, the Supreme Court is a tiny institution that can resolve only a small fraction of the constitutional issues that arise in any given year. Rationing the Constitution shows that this simple yet frequently ignored fact is essential to understanding how the Supreme Court makes constitutional law.

Due to the structural organization of the judiciary and certain widely shared professional norms, the capacity of the Supreme Court to review lower-court decisions is severely limited. From this fact, Andrew Coan develops a novel and arresting theory of Supreme Court decision-making. In deciding cases, the Court must not invite more litigation than it can handle. On many of the most important constitutional questions—touching on federalism, the separation of powers, and individual rights—this constraint creates a strong pressure to adopt hard-edged categorical rules, or defer to the political process, or both.

The implications for U.S. constitutional law are profound. Lawyers, academics, and social activists pursuing social reform through the courts must consider whether their goals can be accomplished within the constraints of judicial capacity. Often the answer will be no. The limits of judicial capacity also substantially constrain the Court’s much touted—and frequently lamented—power to overrule democratic majorities. As Rationing the Constitution demonstrates, the Supreme Court is David, not Goliath.

Product Details

ISBN-13:	9780674986954
Publisher:	Harvard University Press
Publication date:	04/29/2019
Edition description:	New Edition
Pages:	280
Product dimensions:	6.12(w) x 9.25(h) x 1.00(d)

About the Author

Andrew Coan is Associate Director of the William H. Rehnquist Center on Constitutional Structures of Government and Professor of Law at the University of Arizona. He served as a law clerk to Judge Richard A. Posner on the U.S. Court of Appeals for the Seventh Circuit.

Table of Contents

Introduction 1

I Understanding Judicial Capacity 11

1 Structural and Normative Underpinnings 13

2 The judicial Capacity Model 19

3 Refining the Model 32

4 Testing the Model 38

II The Judicial Capacity Model Applied 51

Federalism 55

5 The Commerce Power 57

6 The Spending Power 76

Separation of Powers 89

7 The Nondelegation Doctrine 91

8 Presidential Administration 100

Individual Rights 113

9 Equal Protection 116

10 Takings 137

III Positive and Normative Implications 163

11 Judicial Capacity and the Constitutional Choice Set 165

12 Judicial Capacity and judicial Competence 179

13 Judicial Capacity and Judicial Independence 190

Conclusion 208

Appendix: Methods 211

Notes 215

Acknowledgments 257

Index 261

Editorial Reviews

Andrew Coan’s book is a clearly written and intellectually impressive effort to systematically work out the implications of the consequentialist approach to constitutional adjudication and interpretation by the Supreme Court. Agree or disagree, it will become one of the standard references in this debate.

Adrian Vermeule

Two centuries into our American constitutional experiment, rarely does a book force us both to rethink old issues and to confront important issues we had never even considered. Rationing the Constitution is such a book—part theoretical, part empirical, all fantastic.

David Fontana

Through a detailed examination of the Court’s jurisprudential responses to its limited institutional capacity, Coan offers a roadmap for practitioners, academics, and activists to understand how the Court will respond to future constitutional issues.

Harvard Law Review

If you are tired of conventional debates about constitutional law, you will find Andrew Coan’s new book a delight. It is full of insight about the structures that produce constitutional law yet remain in the background of standard doctrinal and theoretical debates. Institutional facts matter in constitutional law. Coan’s book shows why they are so very important.

Victoria Nourse

Andrew Coan’s focus is unconventional, and the result is erudite and creative. He turns the orb of constitutional law to reveal fresh and important insights. This book constitutes a major contribution to the comparative institutional analysis of constitutional law.

Neil Komesar