In the last of the posts dealing with the Yale Conference from several weeks ago, Frederick Schauer (University of Virginia Law School) has written an interesting paper entitled “Is it Important to be Important? Evaluating the Supreme Court Case Selection Process,” see here. You can listen to Professor Schauer’s remarks about his paper from the Conference here. Professor Schauer first makes the assertion that the Court does not decide many of the most important political questions that dominate public discussions today, such as those involving mortgage defaults, executive compensation, interest rates, Israel and Palestine, and the creation of new jobs. Professor Schauer goes on to argue, however, that even in legally important areas, the Court does not hear the cases that dominate the attention and dockets of the lower courts because of information deficits. Professor Schauer, as an eminent First Amendment scholar, uses the example of school and public employee speech as areas where the Court’s docket has been under-representative of the cases appearing frequently before the lower courts. I would take Professor Schauer’s argument one step further: how often does the Court take cases involving the rules of evidence, or practical issues involving the rules of criminal or civil procedure? Or important questions of tax law? It seems that Professor Schauer’s broader point of the under-representativeness of the Supreme Court’s docket may be true in a variety of substantive areas.
Moving away from the Yale Conference to another issue of continuing interest to our readers, the importance and influence of oral arguments, Sarah Treul, Ryan C. Black, and Timothy R. Johnson have posted “Jekyll and Hyde Questions from the Bench: Does the Emotional Nature of Supreme Court Justices’ Questions Affect their Votes on the Merits?” on SSRN, see here. While most of the previous articles I have discussed focus on the quantity of questions or words spoken by the Justices at oral argument, this one focuses on the substance of those questions. Using the Dictionary of Affect in Language, the authors gauged the emotional content of the Justices' questions and comments. They make a couple of interesting findings. First, covering oral argument data from 1979 through 2006, the authors find that the Justices' use of "unpleasant language" toward the petitioner makes reversal less likely; however, "positive emotional language" does not necessarily increase the petitioner's likelihood of success. Another is that, over time, the use of both pleasant and unpleasant words increased as the Court moved into the Rehnquist era, which the authors attribute to a general increase in the Justices attacking the opposing position and protecting their own position. In every Term, however, the use of unpleasant words consistently exceeded the use of pleasant words, and in the last decade that gap increased. Therefore, in addition to the Court becoming more “wordy” in asking questions, the authors find that there is also a general trend toward more hostile or “unpleasant” questioning too. (Disclosure: Timothy Johnson is a close colleague of mine in the Department of Political Science at the University of Minnesota and Sarah Treul is formerly one of my Ph.D. students)