Information, Oral Arguments, and Supreme Court Decision Making

Abstract

Conventional wisdom in judicial politics is that oral arguments play little if any role in how the Supreme Court makes decisions. A primary reason for this view is that insufficient evidence exists to test this hypothesis. Thus, I ask, do Supreme Court justices use information from oral arguments that may help them make decisions as close as possible to their preferred goals? My answer is straightforward: An investigation of the oral arguments and the Court's majority opinions in a sample of cases from the Burger Court era shows that the Court gathers information during oral arguments and then uses this information when making substantive policy choices. This finding has clear implications for the way in which scholars view the Supreme Court's decision-making process, as it suggests that the accepted view of where oral arguments fit into this process is far from accurate.

Trying to Get What You Want

“…First, research provides systematic evidence that oral arguments generally play an informational role in the Supreme Court's decision-making process (Johnson 2001(Johnson , 2004Wasby, D'Amato, and Metrailer 1976). Other scholars substantiate these findings through detailed analyses of specific cases or issue areas (see, for example, Benoit 1989;Cohen 1978;Wasby, D'Amato, and Metrailer 1976).…”

“…Indeed, Johnson (2001Johnson ( , 2004 finds that only about 4 percent of all briefed issues focus on threshold issues. In short, the parties or amici involved in a case are usually reticent to raise these issues.…”

“…Third, scholars have known for some time that justices use oral arguments as a strategic tool (Wasby, D'Amato, and Metrailer 1976), and recent analyses provides systematic support for this contention (Johnson 2001(Johnson , 2004. Specifically, during these proceedings, justices signal one another about issues important to them, take note of their colleagues' questions and comments, and use the information they garner when building coalitions (Johnson 2004;Johnson, Spriggs, and Wahlbeck 2007).…”

Toward an Actor-Based Measure of Supreme Court Case Salience

“…Second, our empirical argument flows from research demonstrating the justices are not passive agents but rather are actively engaged in oral arguments in multiple ways. A growing body of research shows that they use oral argument to begin the coalition-formation process (Black, Johnson, and Wedeking 2012;Johnson et al 2009;Johnson, Spriggs, and Wahlbeck 2007), to reevaluate a tentative vote position (Ringsmuth, Bryan, and Johnson, forthcoming), and to gain information not found in the filed briefs or in other materials before the Court (Johnson, 2001(Johnson, , 2004. This wide range of activity, unlike a justice's vote, is voluntary; it is precisely that the justices are engaged, and not how they are engaged, that is important for our argument.…”

Legal Realism for Economists

“…Some social science research analogizes lawyers to lobbyists supplying information about the policy consequences of a particular decision (Johnson, 2001;Dewatripont and Tirole, 1999). This analogy may help capture the Realist insight that judges care very much about factual context and policy considerations, yet the analogy also seems to miss important aspects of modern legal advocacy: the arguments from precedent, the careful parsing of statutory or regulatory language, and the analogies to other areas of law.…”