ABOUT THIS BOOK
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.
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, Georgetown University Law Center
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, George Washington University Law School
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, University of Wisconsin Law School
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, Harvard Law School
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
TABLE OF CONTENTS
I. Understanding Judicial Capacity
1. Structural and Normative Underpinnings
2. The Judicial Capacity Model
3. Refining the Model
4. Testing the Model
II. The Judicial Capacity Model Applied
5. The Commerce Power
6. The Spending Power
Separation of Powers
7. The Nondelegation Doctrine
8. Presidential Administration
9. Equal Protection
III. Positive and Normative Implications
11. Judicial Capacity and the Constitutional Choice Set
12. Judicial Capacity and Judicial Competence
13. Judicial Capacity and Judicial Independence