Campaign Finance and Oral Arguments

>> Monday, September 14, 2009

In response to Jeff Rosen's recent argument that Elena Kagan blew it at the recent oral arguments on a campaign finance case, Yglesias argues that oral arguments at the Supreme Court probably don't matter anyway. John Sides responds with a summary of some recent scholarship buy Johnson, Walbeck, and Spriggs:

We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer’s oral argument affect the justices’ final votes on the merits? We answer these questions by utilizing a unique data source—–evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun’s grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun’s ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument.
A couple points:

  • Even assuming that the J/W/S data establishes that the causal relationship runs in the direction they claim (i.e. that Blackmun didn't just consider oral arguments better when he agreed with them on the merits a priori), generalizing from the case they use is very problematic. It's not just that it's an n of 1 -- whatever might be optimal, in practice social science frequently has to proceed through small case studies. The bigger problem is the identity of the n in this case. Small case studies are most convincing when they represent "tough cases"; that is, if a case shows something occurring when one would expect the opposite. If you were going to name a Supreme Court justice who was unusually likely to be affected by oral arguments in marginal cases, however, the insecure, indecisive, and fussy Blackmun would be at the top of the list. I would be very leery about assuming that this applies to other justices.
  • Even if we assume arguendo that Blackmun represents the rule rather than the exception, I think Rosen is engaging in a classic pundit's fallacy. On the merits, I agree with Rosen 100% that the ability of monied interest to dominate political campaigns and the consequences for democracy are a more convincing justification for campaign finance restrictions than the need to alleviate the appearance of corruption. The idea that an argument based on structural inequality is more likely to convince the conservative Republicans who represent a majority of the Court, however, is unpersuasive in the extreme. Kagan made the argument most likely to appeal to the median justice; it almost certainly won't work, but that's because she was drawing dead, not because she made a strategic error.


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