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Oral Arguments and Coalition Formation on the U.S. Supreme Court: A Deliberate Dialogue
By Ryan C. Black, Timothy R. Johnson, Justin Wedeking
The University of Michigan PressCopyright © 2012 the University of Michigan
All rights reserved.
On June 25, 2009, the U.S. Supreme Court decided Horne v. Flores. The case focused on whether the state of Arizona took appropriate action to overcome barriers to English-language learning in its schools and whether Arizona's compliance with the language requirements of the No Child Left Behind Act of 2001 was consistent with the "appropriate action" standard required by the Equal Education Opportunity Act of 1974. The Court's decision is certainly important for its impact on national educational policy. It is also important for another, less obvious, reason — the justices' behavior and interactions with one another during the oral arguments two months prior to the public announcement of their final decision. Indeed, the majority and dissenting coalitions that ultimately formed in June originated in how the justices dealt with one another during these proceedings. To see how, we turn back the clock to April 20, 2009.
The oral argument began with the customary opening statement made by all advocates: "Mr. Chief Justice, and may it please the Court"; but that was the extent to which the petitioner's attorney stayed on script (oral argument transcript, 2). This development probably surprised those in the gallery that day because standing at the lectern was not a legal lightweight appearing before the Court for the first time; rather, it was former solicitor general Kenneth Starr, representing Arizona and superintendent Tom Horne. Despite his prominence, Starr completed exactly one sentence about the history of the case before Justice David Souter interrupted with a question about the lower court's precise determination. Starr responded briefly, but with the session still barely a minute old, Souter launched into a lengthy second question that ended with him inquiring, "Am I — am I wrong on [what the lower court determination was]?" (oral argument transcript, 2). Starr, perhaps channeling Ed McMahon, responded with "You are correct" (oral argument transcript, 2).
Having ostensibly satisfied Souter, Starr tried to move on but was interrupted several more times. These interruptions made it difficult for him to press his next point — that the school district in question was improving and was doing "great." Starr battled to keep his argument on track while the justices raised questions that piqued their interest and that, as former solicitor general Theodore Olson once put it, enabled them to "make points to their colleagues" (Biskupic 2006).
Just when Starr seemed to have an opportunity to hammer home his argument, he was interrupted again, this time by Justice Stephen Breyer. Breyer challenged Starr's assessment of progress in Arizona by citing a list of statistics that suggested that the program's objectives had yet to be achieved. At this point, Starr was not even in a position to add much to the discussion. In fact, as Justice Antonin Scalia entered the conversation, it was uncertain when Starr would have a chance to speak. In particular, Scalia was confused about the statistics Breyer referenced. When Starr could not immediately clarify the matter, Scalia said, "If you can't answer that, I think Justice Breyer can. But I would like to know what comparison —" (oral argument transcript, 5). Breyer continued with the interruptions, saying, "He doesn't actually have the right to ask me questions." Scalia then replied, "I don't. That's — that's exactly true. But —." To calm the atmosphere, Chief Justice John Roberts spoke up: "Very much true. Counsel, why don't you try to answer?" (oral argument transcript, 5).
Although Starr tried to highlight data found in an appendix to his brief, Roberts prodded him to refine and reshape his response: "Well, I still don't have an answer to Justice Breyer's — I guess Justice Scalia's question following up on Justice Breyer's. What are the parameters or the — data with respect to the figures Justice Breyer gave you?" Again, Starr did not provide the exact answer Roberts sought, so the Chief Justice tried another tack: "So the answer is that Justice Breyer's figures are correct with respect to the appropriate bases of children. You are just saying that you want to use a different test than the one that he was quoting?" When Starr refused to confirm what appeared to be a helpful point, Roberts tried a third angle: "The figures are accurate. You just think a different test should be used?" This time, when Starr responded, Breyer interrupted to press Starr on what test he preferred.
While the argument moved on to address other issues, ideological cleavages among the Court's members were readily apparent (Lowy 2009). They also turned out to be persistent. Just over two months later, the Court decided Horne by a 5-4 vote. After going head-to-head during oral arguments, Breyer and Scalia now faced off in opposing coalitions, with Scalia joining a majority opinion authored by Justice Samuel Alito. Breyer wrote the Court's dissenting opinion. Oral argument portended not just the vote outcome in the case but also the argumentative basis for the opinions issued by the competing coalitions.
Consider first the majority opinion. Among other arguments, Alito's opinion remanded the case for "further factual findings regarding whether [the] implementation of the policy in question was a 'changed circumstance' warranting relief" (23–25). In other words, the majority argued that the district court must reconsider the factual record — as discussed at oral argument — on four separate issues. Breyer's dissent also moved directly to a point he raised during oral argument — the flaw in the school district's factual determination would have adverse effects on students. As he put it, "I fear that the Court misapplies an inappropriate procedural framework, reaching a result that neither the record nor the law adequately supports. In doing so, it risks denying schoolchildren the English-learning instruction necessary 'to overcome language barriers that impede' their 'equal participation.'" In sum, for both the majority and the dissent, the questions raised by Scalia, Roberts, and Breyer during oral argument corresponded with both coalition composition and the specific policy content articulated by the two sides.
This book addresses one of the most important questions social scientists have sought to answer: How and why do coalitions form when groups make decisions? We focus on the process of coalition formation on the U.S. Supreme Court. Specifically, we suggest that the sequence of events in Horne is neither anomalous nor limited to recent Court decisions. Instead, it is indicative of how justices interact in almost every case they decide. That is, they interrupt one another, listen to what others have to say, and ultimately try to use what they learn from these interactions to determine how they will decide the legal and policy issues before them. Generally, then, we contend that oral arguments mark the beginning of what can be both a contentious and long process of building a majority coalition on the U.S. Supreme Court.
In so doing, we make several contributions to our understanding of coalition formation and Supreme Court decision making. First, we provide a novel theoretical perspective that crosses disciplinary boundaries to link the literature on coalition formation with insights from social psychology. Doing so allows us to analyze how political decision makers interact with one another. Second, we draw on a unique mixture of archival and contemporary data — much of it new to the literature — to demonstrate how justices gather and then use information from oral arguments to help them make coalitions. Third, and most specifically, we make a key contribution to the growing literature that focuses on how Supreme Court oral arguments affect the decisions justices make.
Our decision to focus on the Supreme Court is a deliberate one, reached after a careful consideration of the unique benefits of analyzing its inner workings. The Court provides a particularly good environment for analyzing coalition formation because of the controlled and highly institutionalized nature of its decision-making process. That is, because the institutional structure is constant (even over time), we have an unparalleled opportunity to uncover how the justices' interactions with one another affect who joins a majority coalition when cases are decided.
At the same time, we also believe that this book offers important insights beyond the Supreme Court. Coalition formation has broad importance for political scientists and others. Indeed, interest in coalition formation crosses disciplinary boundaries and is important to fields as diverse as sociology (e.g., Strodtbeck 1954; Gamson 1961), economics (von Neumann and Morgenstern 1953), and psychology (Kahan and Rapoport 1984). More specifically, the study of coalitions ties directly into some of the most fundamental questions of politics and political science. With only a handful of exceptions, our government is premised on the concept of majority rule. Hence, to understand what resources and rights are allocated to which groups and interests at what times, any analysis must begin by examining how majorities form or dissolve. We, of course, are not the first to make this observation. Easton (1953), for example, defines politics as the authoritative allocation of values. Among his many contributions to the field, Riker (1962, 12) offers a refinement of this notion when he argues that "much the greater part of the study of the authoritative allocation of values is reduced to the study of coalitions."
Our argument offers a step forward for political scientists' understanding of coalition formation among political actors. Indeed, the insights we provide can be translated to the process through which members of Congress and bureaucrats use hearings to gather information before they make decisions. Thus, we believe that although our analysis concerns one particular institution, our theoretical argument is broad based and will be useful to many areas of political science.
The remainder of this chapter has several goals. We begin by fleshing out our initial claim that oral arguments, as a general matter, are an important part of the Court's decision- making process to which scholars, advocates, and justices alike should pay attention. Second, we provide some facial support for this theory by turning to statements from justices, attorneys, and Court watchers. Third, we offer a theoretical account that links components of coalition formation to Supreme Court oral arguments. Finally, we summarize our plan for the remainder of the book.
The Importance of Oral Arguments
The justices' behavior during oral arguments in Horne highlights a point that has, until recently, been less than obvious to legal scholars and political scientists alike: These proceedings can play a key role in the Court's decision-making process. Many students of the Court think otherwise. For example, Rohde and Spaeth (1976) assert that oral arguments have little influence on the outcome of a case because justices' voting preferences are stable. More specifically, Rohde and Spaeth posit that while "oral argument frequently provides an indication of which is the most likely basis for decision," it "does not ... provide reliable clues as to how a given justice may vote" (153). Segal and Spaeth (2002, 280) concur, contending that there is no indication that oral argument "regularly, or even frequently, determines who wins and who loses."
As further evidence that justices do not think about these proceedings as they decide the legal and policy issues of a case, Segal and Spaeth (2002, 280) point out that Justice Lewis Powell's copious conference notes make almost no references to oral argument. Segal and Spaeth suggest that because conference (where justices cast initial votes in a case) occurs within a day or so of oral argument and because none of the justices used the words oral argument during private conference discussions, the proceedings in open court must not affect the outcome of the case. Generally, then, for Rohde and Spaeth and Segal and Spaeth, justices' votes will not change as a result of what transpires during a one-hour exchange between Court and counsel.
The idea that oral arguments have little bearing on case outcomes stems from the prevalence of the attitudinal model, which posits that justices simply vote for their preferred outcome and are not influenced by external factors including the law or their colleagues' preferences (Segal and Spaeth 2002). Despite this claim, the preponderance of evidence emanating from political science (e.g., Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000; Hammond, Bonneau, and Sheehan 2005) and legal scholarship (e.g., Harvey and Friedman 2006) demonstrates that the various points of the decision-making process can and do affect case outcomes. Indeed, scholars have shown that agenda setting (Black and Owens 2009), the order of voting at conference (Johnson, Spriggs, and Wahlbeck 2005), opinion assignment (Maltzman and Wahlbeck 2004), and bargaining over opinion content (Spriggs, Maltzman, and Wahlbeck 1999; Maltzman, Spriggs, and Wahlbeck 2000) influence the choices justices make.
In the midst of the Court's decision-making process, justices sit with one another to hear oral arguments from attorneys representing both sides of a dispute. Evidence establishes that these proceedings generally play an integral role in the Court's decision-making process (Johnson 2004; Wrightsman 2008). More specifically, this one-hour conversation between Court and counsel as well as among the justices themselves connects with the outcome of a case in myriad ways. Justices, for example, use these proceedings to gather additional information not contained in the litigants' briefs (Wasby, D'Amato, and Metrailer 1977; Johnson 2004). Such information includes the facts of the case, pertinent precedent, and how Congress or the president might respond if the Court decides in a particular way.
In addition, evidence indicates that the quality of arguments forwarded by attorneys during these proceedings affects justices' votes (Johnson, Wahlbeck, and Spriggs 2006). Indeed, even justices predisposed to vote for a particular side (based on their ideological predilections) tend to vote more often for the side that offers better arguments in open court. Finally, mounting evidence suggests that during oral arguments, justices foreshadow how they will decide (Shullman 2004; Roberts 2005; Johnson et al. 2009; Black et al. 2011). Such signals emanate from the number of questions justices ask the attorney for each side of the dispute as well as from the emotive tenor of these questions. When justices give one side a harder time (by asking more questions) or when they ask that side questions using less pleasant language, that side is more likely to lose the case.
Oral Argument as a Conversation among Justices
While this argument may be intuitive in its application to the Court, it is not clear whether the justices use oral arguments as a forum to help them build majority (and possibly dissenting) coalitions. Some evidence certainly suggests that they begin the coalition-building process during these proceedings (see, e.g., Wasby, D'Amato, and Metrailer 1976; Johnson 2004; Johnson, Spriggs, and Wahlbeck 2007), but most of these findings are based on a single justice's behavior, on a small number of cases, or on anecdotal accounts. We do know, however, that justices, attorneys, and keen Court watchers have pegged oral arguments as an important (and possibly the only) forum in which justices hold full-fledged conversations with one another about cases they have chosen to decide. In fact, each of these groups posits that the justices utilize these proceedings to learn about their colleagues' preferences and to make legal or policy points to one another, not simply to ask questions of the attorneys.
Excerpted from Oral Arguments and Coalition Formation on the U.S. Supreme Court: A Deliberate Dialogue by Ryan C. Black, Timothy R. Johnson, Justin Wedeking. Copyright © 2012 the University of Michigan. Excerpted by permission of The University of Michigan Press.
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