The Impact of Institutional Rules on the U.S. Supreme Court

Abstract

Assessing Judicial Certainty: The Supreme Court's Use of Questions and Statements During Oral Arguments The United States Supreme Court hears oral arguments for every case granted full consideration. These proceedings are an hour in length with each party receiving exactly 30 minutes to state its case. During this time, the justices are free to interrupt and so arguments are often characterized as a barrage of questions from the greatest legal minds our county has to offer. Despite this characterization -- of the Court rapidly firing questions at attorneys who struggle to keep up -- nearly half of the Court's utterances come not as questions, but as statements. Questions and statements are fundamentally different communication methods, however they have never been considered separately in any large-n empirical study of oral arguments. Using voice-identified oral argument transcripts, I code for use of questions and statements, finding the two theoretically and empirically distinct: questions increase a party's chances of winning while statements increase their chance of losing. The Supreme Court and Congress: Information and the Separation of Powers If the U.S. constitution functions as it was intended, a system of checks and bal- ances should afford each branch a measure of power over the others. Separation of powers research within political science focuses on whether or not these checks and balances af- fect the behavior of institutional actors. Despite the theoretical appeal, recent scholarship that investigates the extent to which the U.S. Supreme Court is constrained by the exec- utive and legislative branches produces few positive results; for the most part the Court does not alter its agenda-setting and decision-making behavior, even under conditions the Court might expect a “check” from other branches (Segal, 1997; Sala and Spriggs, 2004; Owens, 2010). Recent work by Clark (2009; 2011), and Segal, Westerland and Lindquist (2011) however, suggests scholars might be looking in the wrong places when searching for separation of powers effects. These works posit that it’s not a specific congressional override of a Court’s policy that functions as a check, but a more broad threat to insti- tutional legitimacy. To this end, I give attention to the relationship between the Court and the House – arguably the weakest relationship in the system of checks and balances – by examining the effect of MC one-minute speeches that mention the Court. Specifically, I ask whether the Court, during information-gathering at oral argument, is sensitive to this non-legislative speech as an indicator of intense elite and constituent preferences. How to Get Away With Murder: Killing Issues in the U.S. Supreme Court The U.S. Supreme Court is not a self-starting institution; it must wait for issues to come to it before deciding them. The Court’s certiorari process is, however, a powerful device that provides justices with full discretion over cases they hear and which individual questions within those cases they will decide. Thus, while the justices often grant certiorari on all questions presented by the litigants, they sometimes strike specific questions from consideration. When this type of limited certiorari is granted, there may be justices who would rather decide a case on these suppressed issues, so I seek to determine the factors that may lead justices to resuscitate issues, how they go about doing so, and how successful such attempts are. In particular, I posit oral arguments provide justices with a unique forum to take this tack. To test this assertion I examine all cases from the 2002 to 2010 terms that contain issues suppressed during the cert. stage. I then analyze whether justices attempt to resuscitate these “dead” issues at oral argument and offer several explanations for why they engage in “issue resuscitation.” Despite justices’ attempts to re-raise and therefore reach the merits of suppressed legal questions, I find that the Court’s single best way to kill a legal issue is to cut it during certiorari.