Academic journal article Political Research Quarterly

Delaying Justice: The Supreme Court's Decision to Hear Rearguments

Academic journal article Political Research Quarterly

Delaying Justice: The Supreme Court's Decision to Hear Rearguments

Article excerpt

Some of the Supreme Court's most famous cases-from Roe v. Wade (1973) to Brown v. Board of Education (1954)-have been decided only after being held over and argued a second time. While few cases take this path, scholars have offered no systematic account for why the Court would ever take such a tack. We develop hypotheses about when reargument is most likely to occur, and test them on all formally decided cases between 1946 and 1985. More specifically, we focus on how justices' uncertainty about case outcomes affects the Court's decision to seek reargument. Our findings demonstrate that reargument is most likely to occur when multiple levels of uncertainty are present, even when we control for other factors that have been raised as explanations for this phenomenon.

Some of the United States Supreme Court's most visible cases have been argued a second time before the justices rendered final judgment (e.g., Brown v. Board of Education [1954], and Roe v. Wade [1973]). Yet, the reasoning behind the Courts decision to hear rearguments has only been studied incidental to more general discussions of Supreme Court decisionmaking, or as part of in-depth descriptions of specific cases. No systematic attempts have been made to reveal when and why the Court decides to request reargument. Is it because the justices seek information from the parties on issues not previously raised in the briefs or during oral arguments? Is it simply because one or more justices missed oral arguments? Both of these arguments are part of the received wisdom on why the Court sometimes seeks reargument (see O'Brien 2000; Lazarus 1999; Wasby et al. 1977).

While we believe that these factors might account for specific instances of reargument, no systematic explanation exists to account for the motives behind such requests more generally. To fill this void in our understanding of the Supreme Court's decisionmaking process we argue that when the justices are uncertain about either (1) the policy they individually wish to pursue, or (2) the policy that the Court will enunciate in its decision, reargument may help them reach a desired outcome. This account adds another piece to the puzzle that seeks to explain how the Supreme Court ultimately decides cases that it hears. That is, while the Court uses reargument infrequently, we believe that understanding when and why it occurs tells us something important about the nature of the Courts deliberative process.

Theoretically, we concur with the research of Maltzman, Spriggs, and Wahlbeck (2000); Epstein and Knight (1998); Caldeira, Wright, and Zorn (1999); and Johnson (2001) who persuasively argue that scholars should pay greater attention to how policy develops on the Court, rather than simply pay attention to the final votes on the merits. Indeed, just as these scholars document how the deliberative process affects the Court's policy choices (e.g., the agenda setting stage, opinion assignment, opinion writing), we too seek to explain how justices pursue policy goals in a collective environment and under a given set of formal and informal rules. In other words, while reargument may be of interest in and of itself, we are also interested in it for what it can tell us about the nature of the deliberative processes on the Court. The insights we glean add to the growing body of literature showing that the justices are engaged in a "collegial" endeavor and do not act, as previously thought, like nine separate law firms (Maltzman et al. 2000).

Although most recent research rejects the idea that judges are unsophisticated actors who are unconcerned with the preferences of other actors, many still believe that when it comes to the final decision whether to affirm or reverse, justices know exactly what they prefer to do and are unconcerned with what others intend to do. That, at least, is how the leading proponents of the attiludinal model view the process (Segal and Spaeth 1993, 2002).1 According to attitudinalists, Supreme Court justices, whose decisions cannot be overturned by a higher court, who serve for life, and who lack higher ambition, are simply unconstrained from voting their sincere preferences. …

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