Rationing the Constitution vs. Negotiating It: Coan, Mud, and Crystals in the Context of Dual Sovereignty

In RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME DECISION-MAKING, Professor Andrew Coan makes the provocative argument that judicial capacity is the most determinative factor in the Supreme Court’s constitutional interpretation, especially regarding such critical realms as equal protection, takings, and the separation of powers. He contends that the Court’s legitimate anxiety over managing workflow to the federal bench operates more powerfully to shape its responses to questions raised in these areas of law than any alternative theory of constitutional interpretation, including doctrinal models popular most among legal academics and strategic models more popular among political scientists. Some readers will be more persuaded than others on different parts of Coan’s argument, but I was interested in the way that his theory of judicial capacity intersects with my own theory of negotiated governance within Balanced Federalism, which recognizes the interpretive value of bilaterally negotiated outcomes in federalism contexts where judicial capacity is low. Coan and I share the deep concern that the Court’s federalism jurisprudence sometimes misuses categorical rules in contexts where they are necessarily under- or over-inclusive, failing to account for critical nuances in complex cases, controversies, and policy dilemmas. His critique of how capacity constraints cause the Court to reach sub-optimal solutions in the federalism context provides theoretical support for my claim that federalism interpretation should be shared among all three branches, according to the distinctive capacity each brings to the interpretive enterprise. This article assesses strengths and weaknesses in Coan’s book and explores the support his capacity theory provides for my own analysis of the role of interpretive intergovernmental bargaining in contexts of jurisdictional overlap. Part I provides an overview of Coan’s book, paying homage to the explanatory power of his model; the good advice he provides litigants advocating around capacity constraints; and the admonitions he offers about how the limits of judicial capacity should temper expectations about the role of the courts in a legal system within which courts are only one component. Part II considers the intersection between Coan’s work and mine on Negotiating Federalism, starting with our shared skepticism of the Court’s use of “bright-line” categorical rules in this arena and its implications for judicial competence. I argue that his analysis buttresses use of intergovernmental bargaining in certain federalism disputes. Part III nods to some of the limits of Coan’s theory, suggesting that in his robust critique of categorical rules, he nevertheless applies one himself, conflating important differences between the bright-line categorical deference the Court applies in some contexts and the deferential but discretionary review it applies in others. It suggests that the capacity model is already accounted for within the predominant models of judicial interpretation from which Coan distinguishes it. Finally, it encourages Coan to think more seriously about a systemic remedy for the problem he identifies, in which limited judicial capacity leads to sub-optimal decision-making. It presses for clarification whether the solution is to alleviate capacity constraints by expanding the judiciary or reducing its demands by shifting power to the political branches.