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
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