Vol. 34 No. 02 (March 2024) pp. 15-17

RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME COURT DECISION-MAKING,Andrew Coan. Cambridge: Harvard University Press, 2019. pp. 265. Hardback $43.00. ISBN: 9780674986954.

Reviewed by Rachael Houston. Department of Political Science, Texas Christian University. Email: r.houston@tcu.edu.

In my undergraduate courses on Supreme Court judicial decision-making, I guide students through an in-depth exploration of the evolution of justices’ decision-making behavior. This educational journey commences with an introduction to the legal model, advances into the intricacies of the attitudinal model, and culminates with an in-depth examination of the strategic model. As we explore the strategic model, I underscore the pivotal role of external constraints, including the influence of public opinion and the pressures exerted by the Executive and Congress. I also shed light on internal constraints, illuminating the imperative for justices to secure support from their colleagues within the Court.

Andrew Coan's book smoothly becomes part of this academic exploration, intricately aligning with internal constraints, and simultaneously providing a constructive critique of our existing understanding of the strategic model. Coan introduces an innovative concept, “judicial capacity,” which highlights another layer of constraint that significantly influences how justices make decisions, thus shaping the outcomes of Court rulings. For undergraduate students, Coan’s book serves as an indispensable guide, presenting them with insightful case study scenarios, lucid explanations of judicial behavior models, historical and constitutional context, and real-world implications related to the concept of judicial capacity. It equips them with the essential tools to comprehend the motivations driving justices’ decision-making processes.

For scholars and educators, the book serves as an invaluable resource to engage in the exploration of judicial behavior, providing a fresh perspective on constraint within the judicial decision-making framework. Beyond the academic realm, this work also stands as an exemplary resource for individuals seeking deeper insights into the motivations underpinning the decisions of the Supreme Court justices. Coan’s scholarship deserves recognition as a vital addition to our collective understanding of how and why justices arrive at

Coan defines 'judicial capacity' as the Supreme Court’s ability to effectively manage the volume and complexity of litigation while upholding fundamental norms and standards. He skillfully navigates the complex terrain of how the Court handles its caseload, addresses potential surges in litigation resulting from specific decisions, and strives to maintain consistent professional standards and legal uniformity. In essence, Coan argues the Supreme Court must strategically “ration the Constitution” by striking a delicate balance between the demand on its capacity and its unwavering commitment to foundational normative principles. This innovative framework positions judicial capacity as a paramount limiting factor that profoundly shapes the Court’s approach to decision-making across diverse constitutional domains

Coan’s model identifies specific domains, categorized as high-volume, high-stakes, or hybrid, as 'capacity-constrained.' In these domains, the potential volume of litigation and the profound significance of the issues at stake necessitate the Court employ either clear categorical rules or deference to avoid overwhelming its constrained capacity. To subject his model to rigorous scrutiny, Coan methodically employs a multiple case-study framework, endeavoring to determine whether judicial capacity can furnish a more comprehensive and satisfactory explanation for the Supreme Court’s decisions compared to competing models, which include the legal, attitudinal, and strategic models.

Coan scrutinizes the strategic model, articulating its limitations in fully capturing the nuances of the justices’ decision-making process. He questions the model for its inability to offer a comprehensive account of judicial deference, particularly in contexts where there is no credible threat of political retaliation. He also points out the model’s inadequacy in addressing the choice of doctrinal form in Supreme Court decisions, especially in cases where the Court invalidates government actions. Coan emphasizes that the strategic model does not fully consider the intricate relationships and endogenous factors related to judicial capacity constraints, leaving a void in its explanatory power.

In essence, Coan argues that the strategic model, while insightful in some respects, has limitations in accounting for the extent of judicial deference, the selection of doctrinal form, and the complex interplay of factors associated with judicial capacity. This underscores the need to incorporate other factors like judicial capacity in the analysis of the Supreme Court’s behavior, which may lead to a transformation in how political scientists conceptualize and quantitatively measure the strategic model, offering a more comprehensive understanding of the intricate dynamics underlying judicial decision-making.

Coan’s scholarly exploration covers a broad range of aspects in the Court’s decision-making, adeptly applying the concept of judicial capacity to various domains. These include federalism, the separation of powers, the spending power, the non-delegation doctrine, the equal protection clause, the takings clause, the Commerce Clause, and numerous other constitutional domains.

To illustrate the impact of judicial capacity, consider the Commerce Clause, a constitutional provision granting Congress the authority to regulate commerce 'among the several states.' Examining its early years, we observe Congress exercising its authority cautiously, adopting a restrained approach. However, a transformative period unfolded during the late 19th and early 20th centuries, notably in Franklin Roosevelt’s New Deal era. This marked a substantial expansion in the use of the Commerce Clause. Yet, during the New Deal, significant judicial resistance to broad federal regulation under the Commerce Clause emerged, triggering a political backlash and culminating in Franklin Roosevelt’s Court-packing plan in 1937. The subsequent surge in constitutional litigation led the Supreme Court to withdraw from further constitutional scrutiny of commerce-power legislation, a retreat that endured for almost six decades.

In the intricate historical narrative, the Court’s approach to the Commerce Clause stands out as a captivating aspect of its behavior. This constitutional provision creates a unique legal domain known for its substantial caseload and high stakes. Within this domain, the potential for extensive litigation arises from either a plaintiff-friendly test of liability or a vague standard.

Despite the myriad legal, ideological, and strategic factors influencing justices’ decisions regarding federal power, the Court consistently demonstrated broad deference to federal commerce-power legislation. This alignment raises intriguing questions since existing models of Supreme Court decision-making fall short of satisfactorily explaining this noteworthy pattern of deference. However, Coan’s judicial capacity model, incorporating nuanced considerations, offers a compelling explanation. Essentially, the Court’s decisions on Commerce Clause cases align with the predictions of the judicial capacity model, taking into account both the high volume and high stakes characterizing this legal domain.

The theory of judicial capacity introduces vital considerations concerning the constraints encountered by the courts. When juxtaposed with other influential factors such as legal precedent, public opinion, and political influences, the concept of judicial capacity emerges as a complementary element within the broader landscape of judicial theories. While it sheds light on the constraints within which courts operate, it should not be perceived in isolation. Instead, it contributes to and enriches our comprehension of the intricate dynamics underlying the decision-making process, offering valuable insights into the complexities of judicial decision processes. I am eager to see how political scientists adapt and transform this concept to deepen our understanding of the justices’ decision-making behavior.

© Copyright 2024 by author, Rachel Houston.