Timothy Johnson (University of Minnesota Department of Political Science), Ryan Black (Ph.D. candidate, Washington University Department of Political Science), Jerry Goldman (Northwestern University Department of Political Science), and Sarah Treul (Ph.D. candidate, University of Minnesota Department of Political Science) have posted “Inquiring Minds Want to Know: Do Justices Tip Their Hands With Questions at Oral Argument in the U.S. Supreme Court?” on SSRN, see here. This paper addresses a question that many SCOTUSblog readers are undoubtedly interested in: Can oral argument questioning predict the winners and losers in a case? Chief Justice Roberts had previously written on this question, but used a very small sample size (28) of cases from the 1980 and 2003 Terms of the Supreme Court in his study, see John G. Roberts, Jr., Oral Advocacy and the Re-emergence of a Supreme Court Bar, 30 J. Sup. Ct. Hist. 68, 75 (2005). This paper looks at the question more thoroughly by using data from all cases argued before the Court from the 1979 to 1995 Terms of the Supreme Court. A couple observations from Part III are interesting as a descriptive matter: first, the number of questions asked by Justices decreased around the end of the Burger Court and then steeply increased over time during the Rehnquist Court; and second, the Justices have been steadily asking more intricate and long-winded questions from the beginning of the Rehnquist Court in 1986 until the final year in which there is data (1995). But more significantly, the study indicates that when the Justices ask more questions of the petitioner’s attorney, the Court is significantly less likely to reverse the lower court decision. In other words, the petitioner is more likely to lose. This is an interesting study; well worth a read.
James Fowler (University of California-San Diego Department of Political Science) and Yonatan Lupu (University of California-San Diego Department of Political Science) have posted “The Strategic Content Model of Supreme Court Opinion Writing” on SSRN, see here. Using the strategic model of Supreme Court decisionmaking, the authors investigate how opinion content is related to various factors, including the ideology of the author of the opinion, the median of the majority coalition, case complexity (which I refer to in my own work as “multidimensionality”), and the number and type of other opinions in the case. Although there are certain aspects of the paper for which I am skeptical, the paper reports some interesting results. It finds, for instance, that the greater the number of regular concurrences and special concurrences (i.e., opinions concurring in the judgment), the greater the likelihood that the majority opinion will be well-grounded in authoritative precedent. According to the authors, this result suggests that bargaining plays an important role in opinion writing because a majority opinion author faced with divergent viewpoints and multiple separate opinions will work harder to accommodate colleagues and craft the opinion more thoroughly. Accordingly, the authors also find that the ideological variance and the median Justice in the majority coalition also have a positive and significant effect on the citation of authoritative precedent in the majority opinion. Interestingly, neither case complexity (i.e., multidimensionality) nor the ideology of the opinion author have a signficant influence on the citation of authorative precedent.