Supreme Court Oral Arguments and Institutional Maintenance

• DOI: 10.1177/1532673X12471756
• Published date: 01 July 2013
• Date: 01 July 2013
• Author: Eve M. Ringsmuth,Timothy R. Johnson
• Subject Matter: Articles

American Politics Research

41(4) 651 –673

© The Author(s) 2013

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DOI: 10.1177/1532673X12471756

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471756APR41410.1177/1532673X12471756Ame

rican Politics ResearchRingsmuth and Johnson

© The Author(s) 2011

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1Department of Political Science, Oklahoma State University, Oklahoma, OK, USA

2Department of Political Science, University of Minnesota, Minneapolis, MN, USA

Corresponding Author:

Eve M. Ringsmuth, Assistant Professor, Department of Political Science, Oklahoma State

University, 201 Murray Hall, Stillwater, OK 74078, USA.

Email: eve.ringsmuth@okstate.edu

Supreme Court

Oral Arguments

and Institutional

Maintenance

Eve M. Ringsmuth1

and Timothy R. Johnson2

Abstract

Debate within judicial politics scholarship continues to focus on whether, and

to what extent, the separation of powers system affects U.S. Supreme Court

decision making. While both formal and empirical work points to such an

effect, the literature has not addressed a fundamental part of this process—

namely, how justices learn about the preferences or possible reactions of

Congress to potential Court decisions. In this article, we provide an answer

by demonstrating justices use their limited time during oral arguments to

seek such information. Specifically, using data from all orally argued cases

between 1979 and 2003, we show that justices raise questions about Con-

gress more often as the level of external constraint increases.

Keywords

U. S. Supreme Court, oral arguments, separation of powers

During oral arguments in Citizens United v. FEC,1 Justice Ginsburg inter-

rupted the appellant’s attorney, Theodore Olson, 1 minute and 38 seconds

Article

652 American Politics Research 41(4)

into his argument.2 In so doing she posed two related questions. The first was

meant to distinguish between the rights of corporations and individuals under

the First Amendment. The second inquired about the role of Congress in this

debate and is of particular interest to us because of its direct request for

information about the power of Congress to legislate campaign finance

reform. As Ginsburg put it, “[I]s there any distinction that Congress could

draw between corporations and natural human beings for purposes of cam-

paign finance?”

Ginsburg was not the only justice to show concern for Congress. Indeed,

Justice Breyer referenced Congress in a different manner as he asked about

the extent to which its members believed a compelling interest existed in this

situation. More to the point, he asked Olson whether Citizens United wanted

the Court to second-guess Congress:

… is the argument in this case about the existence of a compelling

interest? Because Congress seemed to think that there was certainly

that; it’s this concern about the perception that people are, say, buying

candidates. Are we arguing about narrow tailoring? Congress thought

it was narrow tailoring. Or are we arguing about whether we should

second-guess Congress on whether there is enough of a compelling

interest and the tailoring is narrow enough?

Breyer and Ginsburg seemed to believe understanding Congress’s per-

spective was important enough that they were willing to use the limited time

available during oral arguments to raise questions about this coordinate

branch of government. Of course there were slight differences. Ginsburg’s

question focused on what Congress could do—presumably in the future—

when making laws about corporations, while Breyer asked point blank about

the extent to which the Court should second guess congressional will.

The oral arguments in Citizens United are not unique. Indeed, the justices

raise questions about congressional preferences and behavior in many other

cases. While we could provide numerous examples of this phenomenon, con-

sider a few additional pieces of evidence. In Dayton v. Hanson,3 the Court

was clearly cognizant of Congress as one justice asked, “Do you think that

we owe any special measure of respect to the Congress, that is most inti-

mately concerned with the Speech and Debate Clause, with their view that

this is, the legislation is compatible with that clause?” Similarly, in Cleveland

v. United States,4 a justice engaged counsel about whether Congress’s deci-

sion to take no action regarding the justices’ past interpretation of a mail

fraud statute should be taken as an important indication of Congress’s views