Information, Oral Arguments, and Supreme Court Decision Making

• DOI: 10.1177/1532673X01029004001
• Date: 01 July 2001
• Published date: 01 July 2001
• Subject Matter: Articles

AMERICAN POLITICS RESEARCH / JULY 2001Johnson / SUPREME COURT DECISION MAKING

INFORMATION, ORAL ARGUMENTS,

AND SUPREME COURT DECISION MAKING

TIMOTHY R. JOHNSON

University of Minnesota

Conventional wisdom in judicial politics is that oral argumentsplay 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 investigationof the oral arguments and the Court’s majority opin-

ions in a sample of cases from the BurgerCourt era shows that the Court gathers information dur-

ing oral arguments and then uses this information when making substantivepolicy choices. This

findinghas clear implications for the way in which scholars viewthe Supreme Court’s decision-

makingprocess, as it suggests that the accepted view of where oral arguments fit into this process

is far from accurate.

The idea that Supreme Court justices seek as much information as

possible about cases they hear is not a new one, and students of the

Court have explored the many ways justices receive this informa-

tion—from litigant briefs (Epstein & Kobylka, 1992), briefs amicus

curiae (Spriggs & Wahlbeck, 1997), briefs on certiorari (Caldeira &

Wright, 1988), and the media (Epstein & Knight, 1998a). The prob-

lem for justices is that almost all the information they possess is what

other actors want them to see and consider. In other words, the Court

has little control over the majority of information it receives.Although

justices can certainly gather any information they want—forexample,

by having their clerks do original research—one key means of doing

so is by asking questions during the oral arguments of cases that are

Author’s Note: Anearlier version of this article was presented at the 1999 annual meeting of

the Midwest Political Science Association, Chicago. I thank Lee Epstein, Jack Knight,

Valerie Hoekstra, Bill Lowry, Greg Caldeira, Susan Brodie Haire, and the anonymous

reviewers for their helpful comments.Thanks also to Maria Skolarikou for her research assis-

tanceand to John Ginkel and Chris Hasselman for coding for the reliability analysis. The original

data collection for this study was partially supported by a grant from the National Science Foun-

dation SBR: 9709927.

AMERICAN POLITICS RESEARCH, Vol. 29 No. 4, July 2001 331-351

© 2001 Sage Publications

331

granted full review. As such, these proceedings potentially play a key

informational role in the Court’s decision-making process.

Although this assumption seems tenable, many students of the

Court think otherwise. For example, Rohde and Spaeth (1976) asserted

that oral arguments have little influence on the outcome of a case

because justices’ voting preferences are stable. More specifically,

they posit that although “oral argument frequently provides an indica-

tion of which is the most likely basis for decision,” it “does not...pro

-

vide reliable clues as to how a given justice may vote” (p. 153). Segal

and Spaeth (1993) concurred with this assessment and suggested that

ascertaining “the extent to which it [oral argument] affects the jus-

tices’ votes is problematic” (p. 208). They also contend that there is no

indication that oral argument “regularly, or even frequently, deter-

mines who wins and who loses” (p. 209). For Rohde and Spaeth, and

Segal and Spaeth, the short time allotted for oral arguments, combined

with the fact that justices’ preferences are fixed, means that their votes

will not change as a result of what transpires during these proceedings.

The point is not that oral arguments provide no information to the

Court but that their usefulness for predicting the final disposition

(vote) of a case is problematic.

The assertion that oral arguments have little to do with determining

justices’ votes does not mean that these proceedings have no bearing

on how theymake decisions. Indeed, although oral arguments may not

change the disposition of a case, they may still affect the Court’s sub-

stantive decisions by providing the justices with information about

that case (see, e.g., Benoit, 1989; D. Cohen, 1978; Wasby, D’Amato,

& Metrailer, 1976). If this is so, then scholars must reconsider the role

that these proceedings play for Supreme Court justices. Using the stra-

tegic model as a theoretical foundation (see, e.g., Epstein & Knight,

1998a), I do just that. Specifically,I am interested in three general pre-

dictions. The first is that as strategic actors, Supreme Court justices

must gather information about a case if they want to make efficacious

policy choices that also satisfy their preferred goals. The second is that

justices can use oral arguments as one way to procure such informa-

tion. Finally, if this information is helpful, then they should use it

when writing their substantive decisions.

Toassess these predictions, I examine the types of information that

justices gather during oral arguments, as well as the extent to which

332 AMERICAN POLITICS RESEARCH / JULY 2001