Supreme Court Oral Arguments and Institutional Maintenance

Debate within judicial politics scholarship continues to focus on whether, and to what extent, the separation of powers system affects U.S. Supreme Court decision making. While both formal and empirical work points to such an effect, the literature has not addressed a fundamental part of this processnamely, how justices learn about the preferences or possible reactions of Congress to potential Court decisions. In this article, we provide an answer by demonstrating justices use their limited time during oral arguments to seek such information. Specifically, using data from all orally argued cases between 1979 and 2003, we show that justices raise questions about Congress more often as the level of external constraint increases.