Document Type


Publication Date

January 2020


This paper, part of a Symposium on Andrew Coan's book, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making, traces congressional changes to Supreme Court jurisdiction over more than a century, noting that those changes were regularly made in response to concerns about the Court's caseload. To the extent that Coan, and the Court, turn to doctrinal methods of controlling caseloads, such as deferential standards of review, they are overlooking the important congressional role in setting the Court's jurisdiction. The paper concludes by criticizing the recent decision of Rucho v. Common Cause in which the Court held that extreme partisan gerrymandering is nonjusticiable without discussing Congress's very deliberate decision to maintain mandatory jurisdiction for the Supreme Court in constitutional challenges to redistricting. That congressional decision should have been honored by adjudicating the Rucho plaintiffs' claims and by recognizing that the Court's floodgates concerns should have been taken up by Congress if the flood of litigation in fact materialized.