Judicial capacity and the substance of constitutional law

Yale Law Journal

Volumn 122, Issue 2, 2012, Pages 422-458

  Coan, Andrew B ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84869189044     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (156)

1. Larry D. Kramer, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004) (criticizing judicial supremacy in constitutional interpretation),
2. Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469 (1981) (defending the judiciary as an institution to vindicate important rights claims and elaborate constitutional meaning).
3. Neil K. Komesar, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 123-150 (1994)
4. Adrian Vermeule, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION (2006).
5. Barry Friedman, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009) (suggesting that the Supreme Court generally responds to majoritarian forces),
6. Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103 (offering a qualified argument to the contrary).
7. Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2d ed. 2008)
8. David Schultz, Introduction to LEVERAGING THE LAW: USING COURTS TO ACHIEVE SOCIAL CHANGE (David A. Schultz ed., 1998).
9. Neil Komesar, Whose pioneering work I build on throughout.
10. Komesar, Supra note 2, at 252 ("The physical capacity for the courts to review governmental action is simply dwarfed by the capacity of governments to produce such action.").
11. U.S. CONST. art III, § 1. Functionally speaking, the base of the judicial pyramid also comprises dozens of federal administrative agencies (employing more than one thousand administrative law judges) whose decisions are reviewable in the courts of appeals or, occasionally, in the federal district courts.
12. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1099 (1987).
13. Frequently Asked Questions, U.S. CTS., http://www.uscourts.gov/Common/FAQS.aspx (last visited Sept. 3, 2012) (discussing the number of federal courts).
14. Komesar, Supra note 2, at 144-145.
15. Neil K. Komesar, LAW'S LIMITS: THE RULE OF LAW AND THE SUPPLY AND DEMAND OF RIGHTS 40-41 (2001);
16. Richard A. Posner, THE FEDERAL COURTS: CHALLENGE AND REFORM 133-134 (1996).
17. That norms play a role in constraining judicial capacity may seem fairly obvious. But they have received little attention in the literature, and, as we shall see in the next Part, their precise content is crucial to understanding just how the limits of judicial capacity affect the substance of constitutional law.
18. Judith Resnik, Tiers, 57 S. CAL. L. REV. 840, 852 (1984) ("As the example of the coin-flipping judge illustrates, we insist upon deliberate, rational dispute resolution.").
19. VERMEULE, Supra note 2, at 268 (suggesting this ceiling on the Supreme Court's capacity);
20. Margaret Meriwether Cordray & Richard Cordray, The Supreme Court's Plenary Docket, 58 WASH. & LEE L. REV. 737, 745-746 (2001) (surveying the history of the Court's plenary docket).
21. David R. Stras, The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation, 27 CONST. COMMENT. 151, 153 fig.1 (2010).
22. To be clear, the Court certainly could decide more cases than it does now. And perhaps it should. The important point is that it could not decide much more than one hundred fifty cases per year without sacrificing its commitment to minimum professional standards. As we will see in Part II, this significantly constrains the Court's constitutional options.
23. Cordray & Cordray, supra note 10, at 740 (noting "a steady drop in the percentage of petitions for certiorari granted by the Court" in the face of a "steady increase in the number of cases filed").
24. POSNER, supra note 7, at 4 ("[T]he more intermediate appellate courts there are, the greater the burden on the supreme court of maintaining uniformity among the intermediate courts.").
25. Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1631-1635 (2008) ("[E]nsuring uniformity for its own sake is the Supreme Court's central preoccupation; it is the Court's first order of business and the task to which it devotes the great majority of its time.")
26. H. W. Perry Jr., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 251 (1991)
27. "A circuit split is not simply a formal criterion for cert.; it is probably the single most important criterion...."). Significance here encompasses both the extent of the disuniformity (how many lower courts disagree about how much) and its practical impact. In some legal domains, the Court is unwilling to countenance even the possibility of disuniformity raised by a single unreviewed lower court decision. Here I am thinking principally of lower court invalidations of federal statutes, which the Court reviews almost without exception.
28. th ed. 2002) (noting that in such cases "certiorari is usually granted because of the obvious importance of the case").
29. By contrast, the Court is much more willing to tolerate disuniformity in lower court invalidations of state and local laws, the interpretation (as opposed to invalidation) of federal statutes, the exclusion of unconstitutionally obtained evidence, etc. See, e.g., id. at 246-47, 271-72;
30. Michael F. Sturley, Observations on the Supreme Court's Certiorari Jurisdiction in Intercircuit Conflict Cases, 67 TEX. L. REV. 1251, 1254 (1989) (noting that the likelihood of Supreme Court review turns on both the existence of a conflict among lower courts and the importance of the constitutional question).
31. POSNER, supra note 7, at 128 ("[T]he people who control the federal court system... have acted consistently as if they had an unshakable commitment to accommodating any increase in the demand for federal judicial services without raising the price of those services, directly (as by filing fees) or indirectly (as by imposing delay), in the short run or the long run....").
32. VERMEULE, supra note 2, at 268 (tracing the judiciary's limited capacity to its starkly limited material resources); Cordray & Cordray, supra note 10, at 740 ("[T]he boundaries of he Court's calendar merely reflect the natural limitations upon the amount of time and work that the Justices themselves can put in over the course of a given Term.").
33. I bracket the possibility that some or all of these norms have structural determinants-e.g., public and political pressure that might result if judges abandoned them. That is probably part of the story, but for the purposes of my argument here, it is the existence of the norms that is crucial, rather than their origins.
34. VERMEULE, supra note 2, at 268 ("[I]n 1999 the total federal judicial budget was $3.9 billion, while the administrative budget of the national political branches alone ran to some $80 billion....").
35. See POSNER, supra note 7, at 4 ("The more judges there are in an appellate court, the more cumbersome and protracted their deliberations will be unless they sit in panels-and then there must be a mechanism for coordinating the panels."); see also KOMESAR, supra note 2, at 145 (noting that an increase in judges "would probably make... collective decisions more difficult and time consuming");
36. Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 268 n.213 (1985) (noting the constitutional permissibility of a substantially expanded Supreme Court without addressing the complications noted by Posner and Komesar).
37. KOMESAR, supra note 2, at 145 ("[E]xpansion of these intermediate courts is limited. At some stage, conflicts among the views taken by these separate courts begin to create greater ncertainty and greater demands for resolution by the higher supreme court.")
38. POSNER, supra note 7, at 133 (same). These tradeoffs are the staples of a large literature on judicial reform and the perceived federal caseload crisis of the 1970s and 1980s.
39. Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. REV. 681, 693-694 (1984) (discussing such tradeoffs in connection with proposals for the creation of a national court of appeals).
40. Arthur D. Hellman, Caseload, Conflicts, and Decisional Capacity: Does the Supreme Court Need Help?, 67 JUDICATURE 28, 39-40 (1983) (same).
41. Here and throughout, I frequently speak of "the Court" as a unitary institution. This is obviously a shorthand, but one that poses relatively few dangers for my purposes because the norms that limit judicial capacity are so broadly held. I do not mean that these norms will necessarily-or even often-push the members of the Court toward consensus, only that whatever group constitutes a majority in a given case is likely to feel constrained by them.
42. POSNER, supra note 7, at 98-99 (noting that expanding the scope of legal rights increases demands on the judicial system).
43. See id. at 369 ("The choice between rule and standard has profound institutional implications.... [G]enerally rules reduce and standards increase the amount as well as the length of litigation."); see also KOMESAR, supra note 2, at 147-48 (same). Of course, the Court is unlikely to pursue an increase in uncertainty or a reduction in settlement as an end in itself. Rather, these are the factors that make vague standards expensive (in terms of judicial capacity). What makes them attractive-the judicial equivalents of a Caribbean vacation-is the power they afford to tailor the application of legal norms more closely to their underlying purposes.
44. See POSNER, supra note 7, at 95-96 (describing Article III standing as "another form of indirect pricing of federal judicial services," whose relaxation greatly increased the volume of litigation in the 1960s and 1970s).
45. See KOMESAR, supra note 2, at 147 ("[T]he courts can reduce the number of requests that they review governmental activity by setting out standards that increase the deference given to the reviewed entity.").
46. Categorical rules reduce disuniformity among lower courts by reducing mistakes and making deviation easier to police. See, e.g., POSNER, supra note 7, at 178 (discussing New York Times v. Sullivan, 376 U.S. 254 (1964), as an illustration of this dynamic).
47. Lawrence M. Friedman, Legal Rules and the Process of Social Change, 19 STAN. L. REV. 786, 819-820 (1967) (using the one-man-one-vote rule of Reynolds v. Sims, 377 U.S. 533, 559 (1964), as an illustration).
48. They encourage settlement by reducing uncertainty and more closely aligning adverse parties' assessments of the risk-adjusted value of litigation.
49. Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23, 32 (2000) ("The ex ante certainty that rules provide should encourage more disputes to settle out of court and not require adjudication at all.")
50. POSNER, supra note 7, at 369 (same).
51. See KOMESAR, supra note 2, at 147 ("[T]he courts can decrease litigation by requiring more forms and procedures, by narrowing the types of cases acceptable for adjudication, by narrowing standing or by increasing the requirements for class action.")
52. The Supreme Court's recent decisions tightening pleading standards under Rule 8 of the Federal Rules of Civil Procedure arguably fit this bill. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (dismissing an antitrust class action for failure to state a "plausible" claim); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (applying Twombly's plausibility standard to dismiss a Bivens action against former Attorney General John Ashcroft)
53. Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 54 n.206 (2010)
54. Noting that Twombly and Iqbal were decided against a backdrop "in which federal court caseloads have dramatically increased, the number of federal judges has remained relatively constant, [and] a significant number of judgeships have been vacant for significant periods of time".
55. Andrew B. Coan, Is There a Constitutional Right To Select the Genes of One's Offspring?, 63 HASTINGS L.J. 233, 263 (2011) (noting many possible tradeoffs in the allocation of scarce judicial resources);
56. Strauss, supra note 6, at 1102 (making a similar point).
57. U.S. CONST. art. III, § 2; Judiciary Act of 1925, Pub. L. No. 68-415, 43 Stat. 936 (codified as amended in scattered sections of 28 U.S.C.); Ex parte McCardle, 74 U.S. 506 (1869).
58. Sheldon v. Sill, 49 U.S. 441 (1850)
59. U.S. CONST. art. I, § 8, cl. 18; Rules Enabling Act, 28 U.S.C. § 2072 (2006)
60. McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. CAL. L. REV. 1631, 1649 (1995)
61. "[I]f the elected branches seek to weaken the authority of the Supreme Court, one way to do so is to pass laws that increase the caseload of the lower courts.".
62. See POSNER, supra note 7, at 96 ("A major change in the price of access to the federal courts has been the greatly expanded availability of lawyers for indigent claimants, especially but not only indigent criminal defendants.").
63. KOMESAR, supra note 2, at 143 ("For all of these qualifications... a significant increase in demand for adjudication is inherent in the sizable growth in the market and politics.").
64. Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979) (recognizing such a right of action).
65. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (balancing the interest of a teacher in commenting on matters of public concern with the interest of the school district in efficient public service).
66. Unless specifically noted, I use the phrases "more stringent standard of liability" or "more stringent substantive standard" to denote increased hurdles to the successful prosecution of constitutional claims. This has the opposite effect of strict or stringent review of government action.
67. See supra note 15.
68. KOMESAR, supra note 2, at 251 ("[J]udicial review in connection with equal protection can in theory bring any government action to the courts for review."); cf. Washington v. Davis, 426 U.S. 229, 248 (1976) ("A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white."). For purposes of judicial capacity, what matters is not how many government actions are actually invalidated but how many are called into question to the point of generating serious litigation. This is a crucial distinction.
69. KOMESAR, supra note 2, at 251 ("[I]f clauses like the Equal Protection Clause or the Takings Clause can be all encompassing in theory, they must be and are significantly less than that in practice.").
70. Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 485 (2004)
71. "Almost immediately, the 'set' [of classifications subject to heightened scrutiny] closed when a majority of the Court accorded sex-based classifications quasi-suspect status. It has not expanded since." (footnote omitted).
72. 438 U.S. 104 (1978)
73. Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 CONST. COMMENT. 227, 233 (2006)
74. "The Court uses a deferential, rational basis-like scrutiny to review the constitutionality of so-called 'regulatory takings' under Penn Central Transportation v. New York."
75. Basil H. Mattingly, Forum over Substance: The Empty Ritual of Balancing in Regulatory Takings Jurisprudence, 36 WILLAMETTE L. REV. 695, 699 (2000)
76. "A review of the cases... suggests that balancing is nothing more than an empty ritual in which the claimants rarely prevail unless they qualify for compensation pursuant to a 'per se' rule.".
77. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-39 (2005) (explaining that these "two categories of regulatory action generally will be deemed per se takings for Fifth Amendment purposes").
78. Other plausible examples of capacity-constrained decisions in high-volume domains include (1) the Court's post-New Deal substantive due process doctrine, carefully limited to a few discrete "fundamental liberties"; and (2) the Court's longstanding adherence-with only minor exceptions-to a rigid, conceptually unsatisfying state-action doctrine. A more expansive or less categorical version of either doctrine would greatly expand the range of government action (and inaction) subject to constitutional challenge. See POSNER, supra note 7, at 317 ("Should the movement [for revitalizing old constitutional doctrines limiting government regulation of business] ever succeed, the federal courts will be overwhelmed by cases challenging on constitutional grounds local zoning and rent control ordinances, state and local licensure laws, and a vast array of federal, state, and local regulatory measures....")
79. Christian Turner, State Action Problems, 65 FLA. L. REV. (forthcoming 2013), http://ssrn.com/abstract=2026631 (offering an institutional explanation and rehabilitation of the Court's much-maligned state-action doctrine).
80. POSNER, supra note 7, at 98 (describing "the expansion of constitutional rights and remedies" as one of the most important explanations for the explosion of federal caseloads between 1960 and 1983).
81. Barry Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247, 273-277, 329-340 (1988) (recounting the expansion of habeas corpus as a mechanism for enlisting lower federal courts in the enforcement of the Warren Court's revolution in the rights of criminal defendants)
82. Brian R. Means, POSTCONVICTION REMEDIES § 4:6 (2011) (offering a similar account).
83. For the same reasons, the Court's retreat from many of these rights in subsequent decades should probably not be understood as compelled by the limits of judicial capacity. Capacity may have been one factor, but it was hardly the only one, as evidenced by the willingness of most liberal justices to stay the course. Compare Schneckloth v. Bustamonte, 412 U.S. 218, 273 (1973) (Powell, J., concurring) (describing "the sentiment, shared alike by judges and legislators, that the writ has overrun its historical banks to inundate the dockets of federal courts"), with Schriro v. Landrigan, 550 U.S. 465, 499 (2007) (Stevens, J., dissenting) (blaming the Court's denial of habeas relief on "its increasingly familiar [and unjustified] effort to guard the floodgates of litigation").
84. STERN et al., supra note 15, at 244
85. Cordray & Cordray, supra note 10, at 763 (noting that "the key 'importance' criterion for granting review on the merits is met, almost ipse dixit, when the federal government asserts that it is directly and substantially affected by the outcome or reasoning of a lower court decision").
86. The difference becomes even more significant when we consider that, in normal domains, the number of petitions filed is presumably already reduced by the low odds of success. 50. U.S. CONST. amend. XIV, § 5.
87. 109 U.S. 3 (1883) (limiting this authority to legislation correcting the effects of state actions prohibited by the Fourteenth Amendment).
88. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 148 (2004)
89. "The Section 5 power is an enumerated power, but many of its applications will overlap with the commerce power.... We must worry about the scope of the Section 5 power, then, only when Congress wishes to do something it could not do under the Commerce Clause.".
90. 521 U.S. 507, 530 (1997) ("While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented."). Here I use "stringent" to describe the Court's posture toward government action, rather than constitutional plaintiffs.
91. 538 U.S. 721 (2003)
92. 541 U.S. 509 (2004)
93. Justin Schwartz, Less than Meets the Eye: Antidiscrimination and the Development of Section 5 Enforcement and Eleventh Amendment Abrogation Law Since City of Boerne v. Flores, 38 HASTINGS CONST. L.Q. 259, 312-320 (2011) (offering a similar reading of Hibbs and Lane).
94. The Court's most recent Section 5 decision, invalidating the self-care provision of the Family and Medical Leave Act, adheres to this approach. See Coleman v. Court of Appeals of Md., 132 S. Ct. 1327 (2012). However, the vigorous disagreement between the plurality and dissent as to whether the self-care provision targets gender discrimination suggests that the approach may prove less rule-like, and thus less sustainable, in practice than in theory.
95. Compare id. at 1335 (plurality opinion) ("Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs."), with id. at 1340 (Ginsburg, J., dissenting) ("[T]he FMLA, in its entirety, is directed at sex discrimination."), and id. at 1338 (Scalia, J., concurring in the judgment) ("The plurality's opinion seems to me a faithful application of our 'congruence and proportionality' jurisprudence. So does the opinion of the dissent.").
96. Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 238 (2d ed. 2002) (noting that the Commerce Clause "has been the authority for a broad array of federal legislation, ranging from criminal statutes to securities laws to civil rights laws to environmental laws").
97. 514 U.S. 549 (1995) (invalidating the Gun-Free School Zones Act of 1990, Pub. L. No. 101- 647, 104 Stat. 4844, as beyond Congress's commerce power).
98. 529 U.S. 598 (2000) (invalidating portions of the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902, as beyond Congress's commerce power).
99. 545 U.S. 1 (2005) (upholding the Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242 (1970), as a valid exercise of the commerce power as applied to homegrown medical marijuana).
100. Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566 (2012), came down just as this Essay was going to press. I therefore do not discuss it at length. From the standpoint of judicial capacity, however, NFIB is broadly similar to the Court's other recent Commerce Clause decisions, as explained infra note 63.
101. Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 43 (2010)
102. "[I]t should not matter that air pollution comes from a backyard incinerator or a factory, or that a migratory bird is shot by a lone hunter or a corporate operative. If noneconomic activity creates a federal problem that states cannot individually handle, it should fall within the commerce power." (footnote omitted).
103. Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 164 (2010) ("The economic/noneconomic distinction... does not systematically relate to the advantages of the federal and state governments. The federal government is not especially able in economic matters and the state governments are not especially able in noneconomic matters.").
104. Whatever its ultimate merit, the commerce power analysis in NFIB has similar virtues. Chief Justice Roberts was explicit that his reading of the Commerce Clause (broadly shared by the four joint dissenters) threatens only a single federal statute, and it does so on the basis of a categorical distinction between activity and inactivity. See NFIB, 132 S. Ct. at 2586 (opinion of Roberts, C.J.) ("Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product."). All nine Justices, moreover, appear to have agreed that Congress could pass the perfect economic equivalent of the Affordable Care Act's individual mandate under the taxation power, so long as it invokes that power explicitly. Id. at 2651 (joint dissent) ("The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so."). A rule this narrow and easily evaded seems unlikely to threaten much legislation going forward. Or, at any rate, it is easy to imagine five Justices believing this to be the case. The Court's spending-power holding is a different matter. See infra note 88. 64. Morrison, 529 U.S. at 656-59 (Breyer, J., dissenting); Lopez, 514 U.S. at 628-29 (Breyer, J., dissenting).
105. Morrison, 529 U.S. at 637, 642-43 (Souter, J., dissenting).
106. Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 09 MICH. L. REV. 519, 528 (2011) ("The strongest indicator that the Court was throwing in the towel on policing Congress's Commerce Clause authority came in 2005, when the Court decided Gonzales v. Raich.").
107. Gonzales v. Raich, 545 U.S. 1, 49 (2005) (O'Connor, J., dissenting) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).
108. Id. at 19, 22 (majority opinion)
109. See id. at 47-48 (O'Connor, J., dissenting)
110. Cf. id. at 28 (majority opinion) ("[T]he dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the 'outer limits' of Congress' Commerce Clause authority." (internal quotation marks omitted))
111. Balkin, Supra note 62, at 41-44
112. Cooter & Siegel, Supra note 62, at 162-64.
113. Cooter & Siegel, Supra note 62, at 164 ("[E]conomic activities do not generally cause collective action problems, and noneconomic activities are not generally free from collective action problems.").
114. This is a familiar drawback to the kind of categorical rules the Court is forced to adopt in high-volume, high-stakes, and hybrid domains.
115. Cass R. Sunstein, Problems with Rules, 83 CALIF. L. REV. 953, 992 (1995) ("Rules are both overinclusive and underinclusive if assessed by reference to the reasons that justify them.").
116. KOMESAR, supra note 7, at 161 (describing rational basis review as a "rule[] of abdication");
117. Clark Neily, No Such Thing: Litigating Under the Rational Basis Test, 1 N.Y.U. J.L. & LIBERTY 898, 913 (2005).
118. To be clear, I do not endorse this position. I state it here merely for the sake of argument. Again, I do not mean to endorse the normative commitments that underlie the limits of judicial capacity. But to the extent that judges are already committed to such norms, they will need to assess which of the options available to them are consistent with that commitment. Mostly they will be interested in this question for the obvious reason that they care about the norms at issue. But they will also care about it-and should-because a decision that exceeds the limits of judicial capacity is likely to be costly and short-lived and therefore, in the larger scheme of things, futile.
119. Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2622 (2012) ("It is not hard to show the difficulty courts (and Congress) would encounter in distinguishing statutes that regulate 'activity' from those that regulate 'inactivity.'"); Seven-Sky v. Holder, 661 F.3d 1, 17 (D.C. Cir. 2011) ("[W]ere 'activities' of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such 'activity.'"); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 561 (6th Cir. 2011) ("An enforceable line is even more difficult to discern when it comes to health insurance and the point of buying it: financial risk.... [T]he notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident.")
120. Mark A. Hall, Commerce Clause Challenges to Health Care Reform, 159 U. PA. L. REV. 1825, 1836 (2011) (noting the similarity of the activity/inactivity distinction to other categorical distinctions that have broken down under the pressure of litigation)
121. Corey Rayburn Yung, The Incredible Ordinariness of Federal Penalties for Inactivity, 2012 WIS. L. REV. 841, 870 (arguing that "scores of" federal regulations might plausibly be described as regulating inactivity).
122. I take no position on the merits of this argument here. I merely flag its connection to judicial capacity.
123. Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 174 (dubbing this aversion to the appearance of political decisionmaking "the Frankfurter constraint").
124. Of course, this consideration only comes into play if the Justices otherwise inclined to embrace a rule are convinced it will prove unsustainable in the long run. That was clearly not true of the five Justices who embraced the activity/inactivity distinction in NFIB. See NFIB, 132 S. Ct. at 2589 (opinion of Roberts, C.J.) ("[T]he distinction between doing something and doing nothing would not have been lost on the Framers...."); id. At 2649 (joint dissent) ("Ultimately, [Justice Ginsberg's] dissent is driven to saying that there is really no difference between action and inaction, a proposition that has never recommended itself to law or common sense.").
125. Again, I take no position on the plausibility of this view. The important point is that no Justice who sincerely held it would have worried about the costs of an inevitable, capacity-driven retreat.
126. Erwin Chemerinsky, The Supreme Court, 1988 Term-Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 83-87 (1989) (canvassing strengths of the judiciary and weaknesses of the political process);
127. Douglas Laycock, A Syllabus of Errors, 105 MICH. L. REV. 1169, 1172-1177 (2007) (reviewing MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (2005)) (same).
128. FRIEDMAN, supra note 3
129. ROSENBERG, supra note 4
130. Keith E. Whittington, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY (2007).
131. Pildes, Supra note 3, at 116.
132. FRIEDMAN, supra note 3, at 9-16 (downplaying the countermajoritarian difficulty in light of the Supreme Court's general responsiveness to public opinion).
133. Mark Tushnet, WHY THE CONSTITUTION MATTERS 16-17 (2010) (describing his views, which are roughly consonant with those of the Supreme Court majoritarians, as "the conventional wisdom among scholars... who study the Constitution").
134. Pildes, Supra note 3, at 126-42.
135. Alexander M. Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (providing the classic statement).
136. SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES (Cornell W. Clayton & Howard Gillman eds., 1999) (collecting new institutionalist perspectives on Supreme Court decisionmaking).
137. Ryan C. Black & Ryan J. Owens, Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence, 71 J. POL. 1062 (2009) (attempting to identify and disentangle the legal and political influences on Supreme Court agenda setting).
138. The feedback effects of decisions that underestimate judicial capacity or overestimate the capacity effects of particular rules are likely to generate less pressure for correction. The principal consequence of such decisions will be greater judicial leisure, which studies of judicial behavior conventionally assume at least some judges are inclined to maximize.
139. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1 (1993). But if this is the case, judicial capacity should have even greater predictive value.
140. See supra Section II.B and Part III. A similar retreat and retrenchment seems likely following the remarkably muddy spending-power holding of NFIB. See Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2603-06 (2012) (holding the Affordable Care Act's Medicaid expansion unconstitutionally coercive based on some combination of (1) the size of the federal grants at issue, (2) the independence of the Medicaid expansion from the preexisting Medicaid program, and (3) the unforeseeability-from the states' perspective- of such a dramatic change to the Medicaid program). Without some retrenchment, that holding threatens to unleash a tidal wave of challenges to federal spending legislation.
141. Andrew Coan, Judicial Capacity and the Conditional Spending Paradox, 2012 WIS. L. REV. (forthcoming Dec. 2012) (predicting on this basis that NFIB's spending-power holding will be short-lived).
142. Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135, 1154 (1995)
143. "In addition to consuming a tremendous outlay of resources, the drug war has had an insidious effect on the federal justice system. The influx of thousands of new drug prosecutions attributable to this remarkable enforcement effort threatens to overwhelm the federal courts.".
144. For a discussion of Chief Justice Rehnquist's dire (but probably exaggerated) predictions to this effect,
145. Fred Strebeigh, EQUAL: WOMEN RESHAPE AMERICAN LAW 362-363 (2009).
146. STERN et al., supra note 15, at 247-48 (noting the hurdles to obtaining Supreme Court review in statutory cases)
147. Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz, 99 YALE L.J. 801, 809-810 (1990) (noting the rarity of Supreme Court review in statutory cases as compared to the number of such cases resolved in the courts of appeals).
148. See Friedman, supra note 27, at 808 ("Abandonment of the judicial system, or at least of traditional judicial procedures, has indeed been historically one major social response to the pressures of increasing business.")
149. Bert I. Huang, Lightened Scrutiny, 124 HARV. L. REV. 1109 (2011) (empirically demonstrating an example of this process in action).
150. POSNER, supra note 7, at 160-62.
151. Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 BROOK. L. REV. 685, 688 (2000).
152. Of course, even in this period, judicial capacity has hardly remained static. The number of federal trial and appellate judges grew sevenfold from 1901 to 2001.
153. Judith Resnik, Whither and Whether Adjudication?, 86 B.U. L. REV. 1101, 1104 (2006).
154. Federal magistrate judgeships were created in 1968, expanding the capacity of federal trial courts. See Federal Magistrates Act, Pub. L. No. 90-578, 82 Stat. 1107, 1108-14 (1968) (codified as amended at 28 U.S.C. §§ 631-39). And the last significant vestiges of the Supreme Court's mandatory appellate jurisdiction were eliminated in 1988. See Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat. 662 (codified in scattered sections of 28 U.S.C.). None of these changes, however, fundamentally altered the bottleneck effect that drives the judicial capacity model.
155. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
156. Terry v. Ohio, 392 U.S. 1 (1968) (upholding such stops when based on reasonable suspicion).