This week we’re turning our attention to multiple issues: (1) does each individual Justice ask more questions of the prevailing or losing party in civil cases; (2) is the Justice’s pattern different when he or she votes with the minority; (3) what difference does it make for each Justice’s questioning if the Justice is writing an opinion; and (4) does writing an opinion mean that each Justice is more likely to ask the first question?
Today, we begin our review of the data from arguments in civil cases, 2008-2016, for Justice Anne M. Burke. In affirmances where she voted with the majority, Justice Burke has questioned appellants (the losing party) significantly more heavily than appellees – 2.71 questions to 1.17. The effect is more pronounced when Justice Burke writes the majority opinion affirming. In such cases, Justice Burke averaged 5.31 questions to appellants, but only 0.94 to the appellees. Justice Burke is only somewhat more active when writing a concurrence in an affirmance, averaging three questions to appellants and two to appellees. Compare that to the numbers when Justice Burke isn’t writing in an affirmance – 2.2 questions on average to appellants, 1.2 to appellees.
We’ve shown that overall, the Court averages more questions to the party which will lose than to the winner. Interestingly, Justice Burke’s pattern when voting with the majority in a civil reversal has been the opposite, asking slightly more questions of the appellant. Overall, she averages 1.82 questions to appellants, 1.73 to appellees. When writing the majority opinion reversing, she has averaged 3.19 questions to appellants, 2.84 to appellees. When writing a concurrence (always a small data set), she averages 5.67 questions to appellants, 1.67 to appellees. When not writing an opinion, she averaged 1.39 questions to appellants and 1.44 to appellees.
In Table 454, we report the data for civil cases in which Justice Burke voted with the minority. As we see on the left, when the Court affirmed with Justice Burke in the minority, she averaged two questions to appellants and 1.5 to appellees – more questions to the party who ultimately lost the case, as opposed to the party she would wind up voting against. When Justice Burke wrote a dissent from an affirmance, she averages 3.25 questions to appellants and three to appellees. When she is in the minority but not writing, she averages only 1.17 questions to appellants, 0.5 to appellees.
In civil cases where the Court reverses with Justice Burke in the minority, she once again averages slightly more questions to appellants than appellees – 2.875 to 2.625. Once again, writing an opinion has an impact – Justice Burke averages four questions to appellants when she writes a dissent from a reversal, but only 1.5 to appellants, 0.5 to dissents when she joins someone else’s dissent.
Join us back here tomorrow as we analyze what we can infer from cases where Justice Burke leads off the questioning.