Toward an Actor-Based Measure of Supreme Court Case Salience

• Author: Ryan C. Black,Timothy R. Johnson,Maron W. Sorenson
• Date: 01 December 2013
• DOI: 10.1177/1065912912469729
• Published date: 01 December 2013
• Subject Matter: Articles

Political Research Quarterly

66(4) 804 –818

© 2012 University of Utah

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DOI: 10.1177/1065912912469729

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Article

On March 23, 1982, the Supreme Court was hearing oral

argument in the last of four cases scheduled for the day.

Justice Harry A. Blackmun’s attention and concern, how-

ever, were focused not on the attorney arguing his case but

rather on his colleague and fellow Nixon appointee, Justice

William H. Rehnquist. During the argument, Blackmun

passed a note to Rehnquist that read, “Bill—You have been

utterly quiet today! Is everything all right?” Rehnquist,

responding on the bottom half of the same note, wrote,

“Fine—I’m just bored. The previous argument was atro-

cious. All that and my view is already settled. The deaf

child case is tough and we didn’t get much help.”

This exchange underscores a simple yet powerful

idea: Although they occupy one of the most important

roles in American society, Supreme Court justices are not

immune to disengagement while doing their jobs.1 This,

in turn, has broad importance for how scholars explain

justices’ behavior. In particular, because many judicial

actions are costly in terms of time and energy (e.g., opin-

ion writing), we should expect a justice’s propensity to

engage in these behaviors is, in part, related to how

important, interesting, or salient a given case is to her.

Despite the notion that a justice’s personal view of

salience has implications for how she acts, the predomi-

nant approach in the literature operationalizes salience

based on the behavior of actors other than justices. In

their comprehensive evaluation of the opinion-writing

process, for example, Maltzman, Spriggs, and Wahlbeck

(2000) measure case salience by counting the number of

amicus curiae briefs filed in a case. Beyond interest

group participation, scholars have most often turned to

postdecision media coverage of Supreme Court cases to

differentiate salient from nonsalient cases (Collins and

Cooper 2011; Epstein and Segal 2000). Specifically, this

measure has been employed to analyze justices’ final

votes on the merits (Collins 2011) and the extent to which

written opinions borrow language from litigants’ brief

(Corley 2008). The problem with using these perspec-

tives to assess salience is that they are not based on the

justices’ behavior. They assume, instead, that cases

deemed salient by actors beyond the Court—such as

interest groups or the media—must also be salient from a

justice’s personal perspective.

In this article, we attempt to address this disconnect

between theory and measurement. Specifically, we seek to

provide a theoretically motivated and empirically valid

469729PRQXXX10.1177/1065912912469

729Political Research QuarterlyBlack et al.

1Michigan State University, East Lansing, USA

2University of Minnesota, Minneapolis, USA

Corresponding Author:

Ryan C. Black, Department of Political Science, Michigan State

University, South Kedzie Hall, 368 Farm Lane, S303, East Lansing, MI

48824, USA.

Email: rcblack@msu.edu

Toward an Actor-Based Measure

of Supreme Court Case Salience:

Information-Seeking and Engagement

during Oral Arguments

Ryan C. Black1, Maron W. Sorenson2, and Timothy R. Johnson2

Abstract

Case salience affe cts nearly every aspec t of Supreme Court justices’ b ehavior, yet a valid actor-based measure of

salience has remai ned elusive. Researchers have inste ad relied on external proxy indic ators, such as amicus curiae

participati on and media coverage, to explain ju stices’ behavior. We propose a novel measurement of salience in

which we use justices’ dif ferential levels of engageme nt to generate actor-base d measures of case and justice -level

salience. Focusin g on justices’ behavior during oral ar gument, we contend that th e more engaged the justices are in

a case— defined by the number of words th ey speak—the more salient t he case.

Keywords

judicial politics, case salience, oral arguments, U.S. Supreme Court