Dion Farganis (Bowling Green State University Department of Political Science) has posted “Court Curbing in the Modern Era: Should Supreme Court Justices Really Worry About Attacks from Congress?” on SSRN, see here. Court-curbing refers to congressional actions that are aimed at curbing the power of courts, such as stripping the courts of jurisdiction over certain types of cases or cutting funding to the judiciary. The most famous (or infamous) attempt at court-curbing was President Roosevelt’s failed attempt to pack the Court in 1937. Until recently, there was a dearth of scholarly research on court-curbing, perhaps because many attempts at court-curbing have been unsuccessful as Professor Farganis points out. This article is extremely helpful because it provides an historical account of court-curbing from the unsuccessful attempt to impeach Samuel Chase to more recent jurisdiction-stripping measures. Though the numbers seem low, Professor Farganis concludes that “of the 360 Court-curbing bills proposed between 1937 and 2008, only two or three could credibly classified as legislative successes." The takeaway, according to the article, is that both Justices and scholars overestimate the dangers of court-curbing, and that the Court is less constrained by Congress than most believe.
Lee Epstein (Northwestern University Law School), William M. Landes (University of Chicago), and Richard A. Posner (United States Court of Appeals for the Seventh Circuit) have posted “Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument” on SSRN, see here. This paper begins with three accounts of why the party who is asked the most questions at oral argument is likely to lose: (1) Justices will ask more followup questions if they are receiving unsatisfactory answers; (2) Justices may direct more questions at the party that is viewed as weaker in light of the briefs; and (3) Justices have their minds made up in most cases and they try to poke holes in the arguments of the weaker party in order to persuade colleagues. Similar to a paper I blogged about by Timothy Johnson, see here, the authors find that more questions are addressed to losing parties, and that the greater the disparity in questions asked of the two parties, the more lopsided the vote is likely to be. Three other interesting findings/hypotheses: (1) the number of questions/words from the Justices has increased over the last three decades, perhaps because the Court is hearing fewer cases and is better prepared for each one; (2) the addition of former law professors such as Ginsburg, Breyer, and Scalia possibly has led to a “wordier” Court; (3) between 2004 and 2007, Justice Scalia is the most active questioner with an average of 25 questions per case. In fact, Justices Scalia and Ginsburg asked a question in every single case in the study. This is a really interesting piece, even for the casual Court-watcher.