Date of this Version
WISCONSIN LAW REVIEW 2020:215
Andrew Coan’s excellent book, Rationing the Constitution, sheds important new light on an important facet of Supreme Court decision-making: judicial capacity. Professor Coan argues persuasively that courts’ capacity—and, in particular, the U.S. Supreme Court’s capacity—plays an important role in shaping various constitutional doctrines. By “capacity,” Coan means the number of cases that courts can realistically decide while preserving the judiciary’s own professional commitments to careful deliberation and reasoned decision-making.3 Because judges realize that their resources are limited, they shape various constitutional doctrines to deter potential litigants, lest a flood of constitutional plaintiffs inundate them with more cases than they can responsibly handle. As Coan explains, “[t]he model’s core prediction is that, above a certain threshold, and especially in combination, high stakes and high volume will strongly constrain the Court to employ some combination of strong deference and categorical rules.”
Coan’s attention to judicial capacity is a shift away from the academy’s historic attention to the related but distinct issue of judicial competence. Whereas “competence” encompasses judges’ expertise and skill, “capacity” is a matter of bandwidth. Coan explains that the two are closely linked. Judges might be capable of deciding a certain kind of case in theory, but if in practice they receive too many cases, their theoretical competence doesn’t get them very far. Capacity helps determine competence.
Coan is surely correct that capacity partially does shape competence. The same is true, however, of the political branches. The judiciary may have the much smaller budget,8 but it is not the only part of our government that faces resource constraints. Nor is the judicial branch’s competence uniquely suspect.
This symposium contribution considers whether and how comparative capacity and competence issues should inform judicial decision making. Building on some of my earlier work, it contends that courts should consider both their own and the relevant political branch’s capacity and competence. Judicial capacity constraints will necessarily play a role here, but this inquiry should be comparative. None of this is to attack Coan’s perceptive account of judicial decision-making but, rather, to suggest that his insights raise related normative questions with which judges and scholars should grapple.