Search results

"The Supreme Court Decision Making Process" published on by Oxford University Press.

Supreme Court justices attempt to rule as closely as possible to their policy preferences, but their decisions are not unconstrained. Rather, justices pay attention to the preferences of other actors—including those external to the Court. Whereas most scholars focus on the relationship between the Court and Congress, this article focuses on the relationship between the Court and the executive. Specifically, it argues that justices seek information about how the administration wants them to act because, like Congress, it can sanction the Court for making decisions that diverge from administration policies. Certainly this information can be gathered in a number of ways, but this article argues that when not readily available, justices can obtain it by inviting the solicitor general to appear before the Court as amicus curiae. The findings provide the first systematic evidence that justices actively seek information about the preferences of other actors during their decision-making process.

Conventional wisdom in judicial politics is that oral arguments play 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 investigation of the oral arguments and the Court's majority opinions in a sample of cases from the Burger Court era shows that the Court gathers information during oral arguments and then uses this information when making substantive policy choices. This finding has clear implications for the way in which scholars view the Supreme Court's decision-making process, as it suggests that the accepted view of where oral arguments fit into this process is far from accurate.

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 Congress more often as the level of external constraint increases.