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Rationing the Constitution

Rationing the Constitution

How Judicial Capacity Shapes Supreme Court Decision-Making

Andrew Coan

ISBN 9780674986954

Publication date: 04/29/2019

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.

Praise

  • 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

Author

  • Andrew Coan is Associate Director of the William H. Rehnquist Center on Constitutional Structures of Government and Professor of Law at the University of Arizona. He served as a law clerk to Judge Richard A. Posner on the U.S. Court of Appeals for the Seventh Circuit.

Book Details

  • 280 pages
  • 6-1/8 x 9-1/4 inches
  • Harvard University Press

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