For the past several weeks, we’ve been comparing the level of questioning at the Court in civil and criminal cases to various facts about the underlying case, searching for factors which explain how active the Court is at oral argument. This week, we turn our attention to a new possibility: is a dissent at the Appellate Court a reliable signal of a more active oral argument? One can easily imagine the answer might be yes – if a case divided the Appellate Court, it might give the Supreme Court a lot to talk about at oral argument.
In Table 439, we report the average questions in civil cases to appellants and appellees, divided between cases which were unanimously decided below and cases which were decided over a dissent. For the entire nine years, the Court decided 193 civil cases which were unanimous below, and 75 civil cases with a dissent. Appellants in no-dissent cases averaged 16.82 questions. Appellants in cases where there was a dissent below averaged slightly fewer questions – 16.45 for the entire nine years. It was a different story for appellees, however. Appellees in cases where there was no dissent below averaged 10.3 questions, but appellees in cases with a dissent below averaged 14.86 questions, suggesting that dissents at the Appellate Court might cause the Court to press the winning party below just a bit more. Also, there’s evidence that the number of questions to appellants was quite variable. The standard deviation for appellants in no-dissent cases was 9.26 questions. But the standard deviation for appellants in cases with a dissent was 11.63. In contrast, the standard deviations for appellees were almost identical – in no dissent cases, 8.57, in cases with a dissent below, 8.43.
So what’s it all mean – does a dissent below mean a more active oral argument? For appellees, the answer appears to be yes, at least a bit. The difference in the standard deviation on the appellant’s side suggests that for appellants, the answer might be “it depends.”
Join us back here tomorrow as we address the Court’s criminal arguments between 2008 and 2016.