Academic journal article Political Research Quarterly

Toward an Actor-Based Measure of Supreme Court Case Salience: Information-Seeking and Engagement during Oral Arguments

Academic journal article Political Research Quarterly

Toward an Actor-Based Measure of Supreme Court Case Salience: Information-Seeking and Engagement during Oral Arguments

Article excerpt

Abstract

Case salience affects nearly every aspect of Supreme Court justices' behavior, yet a valid actor-based measure of salience has remained elusive. Researchers have instead relied on external proxy indicators, such as amicus curiae participation and media coverage, to explain justices' behavior. We propose a novel measurement of salience in which we use justices' differential levels of engagement to generate actor-based measures of case and justice-level salience. Focusing on justices' behavior during oral argument, we contend that the more engaged the justices are in a case-defined by the number of words they speak-the more salient the case.

Keywords

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

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 measure of salience that taps into the importance of cases decided by the Supreme Court as viewed from the per- spective of the justices themselves. Borrowing from social psychology, we argue that individuals seek out more information and display higher levels of engagement with a topic when it is salient to them than when it is not. To operationalize this concept, we examine Supreme Court oral arguments and suggest that higher levels of activity by the justices during these proceedings indicate that a case is more salient to the Court as a whole as well as to individual justices.

Our efforts make contributions that span multiple lit- eratures. First, salience is itself a concept of great conse- quence in the judicial decision-making literature. …

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