Constitutional courts are commonly charged with two fundamentally different tasks. One involves arbitrating power arrangements among elements of the state, typically in a relatively small number of cases of high salience and political importance. A second involves the protection of individual rights and liberties, typically through the resolution of many cases of relatively low salience and political importance. In many contexts, the individual rights docket is massive, consisting of thousands, sometimes tens of thousands, of cases per year. Critically, judges lament the size of their individual rights docket, which they argue is repetitive and distracts them the more interesting and politically consequential constitutional control docket. In so far as judges have the means to restrict the flow of individual rights cases, even where they lack discretionary jurisdiction, why do they allow these cases to overwhelm their docket?
We argue that although the precise constitutional questions are distinct, the individual rights and constitutional control docket are linked both politically and informationally. We develop a model of constitutional case management and jurisprudence, in which the individual rights docket has implications for the way that judges evaluate questions of constitutional control and their capacity to issue decisions that will be accepted by powerful political actors. Specifically, our model addresses the following questions: 1) How should courts divide their time among these tasks, 2) Under what conditions can courts build authority useful for constitutional control decisions through the individual rights docket, 3) in light of these dynamics, how should constitutional review jurisdiction be designed?
